BER 210 Semester Test 2

Question 1

What is a contract of sale?

Answer 1

A contract which the seller undertakes to deliver the Merx to the buyer and the buyer in exchange agrees to pay the seller the purchase price.

Question 2

Requirements for a valid COS

Answer 2

Essentialia of COS include
-Intention of seller is to sell and buyer to buy
-Reach consensus on the thing sold (merx)
-Reach consensus on purchase price

Question 3

Describe the Merx (thing sold)

Answer 3

For valid Cos, Merx must be agreed on
-Merx must be definite and ascertainable
-Merx is definite if its mentioned by name in agreement
-No contract will come into being if Merx is illegal

Question 4

List the types of things that can be sold

Answer 4

-Sectional property
-Timeshare property
-Future things
-Res aliena
-Res litigiosa

Question 5

What is sectional property?

Answer 5

-Refers to ownership of a unit that forms part of a group owned complex
-Sectional Property is regulated by the Sectional Titles Act 95 of 1986

Question 6

What is timeshare property?

Answer 6

-Regulated by the Timeshare Control Act 75 of 1983
-A timeshare is a lifetime commitment to paying for annual trips to the same resort/family resort

Question 7

What is res aliena?

Answer 7

A thing of which the seller is not the owner of
-True owner may claim their property from buyer based in the rei vinidicatio

Question 8

Requirements for valid price determination

Answer 8

-agreement on the price
-Price must be certain
-Payment can consist of combination of money and other goods (however money must be more or = to goods)

Question 9

Influence of CPA on the price

Answer 9

-Supplier is prohibited from selling goods @ unfair/unreasonable price
-Seller must display prices of goods on sale
-If 2 prices are displayed, supplier is bound to the lower of the 2

Question 10

Formalities for valid CoS

Answer 10

-General rule = No formalities required
-However, certain statutory formalities are required for valid contract of purchase and sale of immovable property
-Partners may also agree on certain formalities (signatures, witnesses etc)
-Formalities required by law, partners may not exclude, change or abandon

Question 11

Important concepts for contract of sale of land

Answer 11

-Alienate
-Land
-Deed of alienation

Question 12

Aim of formalities for CoS of land

Answer 12

-to prevent disputes regarding the contents of the contract
-to prevent ant uncertainties regarding contents of contract
-to prevent malpractices

Question 13

What does the Alienation of Land Act 68 of 1981 state

Answer 13

That the sale of immovable property be reduced to writing and signed by both parties or their agents

Question 14

Formalities of CoS of land

Answer 14

-Contract must be written
-Contract must be signed

Question 15

Define a material term

Answer 15

One that the parties regard as important enough to insert in the contract

Question 16

In the written part if the contract what should be present

Answer 16

-Object to be sold must be clearly identified
-Purchase price must be clearly defined
-Parties must be clearly described
-Alteration of written contracts (must comply w/ formalities)
-Termination and re-instatement of written contract

Question 17

What is the essentialia of a contract of lease

Answer 17

Contract of lease exists when parties reach consensus on
-Property leased
-Temporary use and enjoyment of the property
-Lessee pays lessor determinable amount of rent

Question 18

Formalities of contract of lease… according to common law

Answer 18

-In terms of Common law
»No formalities required for contract of lease to be valid

Question 19

Duties of the parties are determined by…

Answer 19

-Contents and extent of these rights and obligations are determined by the contracts itself
-Also determined by CPA, Rental Housing Act and common law

Question 20

Duties of the parties in terms of Section 14 of CPA… regarding lease

Answer 20

-Expiry and renewal of fixed-term agreements
-Lease shouldn’t be more than 24 months
-Should be able to cancel within 20 business days

Question 21

Duties of the parties in terms of the Rental Housing Act (lease)

Answer 21

-Tenant has right to privacy … if there is to be an inspection, reasonable notice must be given
-Landlord has duty to provide tenant w/ dwelling in habitable condition and maintaining existing structures
-Landlord may not discriminate against tenants in advertising, in negotiating lease or during term of lease
-Landlord has right to recover unpaid debt after obtaining a ruling by the Rental Housing Tribunal or an order of a court of law

Question 22

Duties of Lessor

Answer 22

-Deliver the property
-Maintain the property
-Pay taxes
-Provide undisturbed use and enjoyment of the property

Question 23

Remedies for Lessee

Answer 23

-Specific performance
-Cancellation of lease
-Claim for damages
-Claim for reduction in rent

Question 24

Duties of lessee

Answer 24

-Pay rent
-Protect and use property in proper manner
-Return property in proper condition on expiry of lease

Question 25

How can a lease be terminated

Answer 25

-Effluxion of time
-Notice/Agreement
-Death
-Insolvency
-Cancellation
-Dissolution of partnership

Question 26

Formalities of contract of lease… according to CPA

Answer 26

-In terms of CPA
»Minister may require certain contract to be in writing
»Written agreements are valid even if lessee did not sign
»Lessor must provide lessee w/ a free copy
»Agreement must be in plain language

Question 27

Formalities of contract of lease… according to Rental Housing Act

Answer 27

-In terms of the Rental Housing Act
»Tenant can insist on written contract
»Must include certain minimum info (if not) landlord commits offence
»Amendment Act - Contract must be in writing even if tenant has not requested it to be
»Minister - pro forma lease in 11 languages
»Long term leases must be registered in the Deeds Office

Question 28

If use and enjoyment is disturbed, lessee can…

Answer 28

Obtain interdict to have lessor refrain from interfering
Obtain spoliation order to have possession returned

Question 29

Regarding future things sold

Answer 29

-If CPA is applicable, future goods sold must in all material aspects and characteristics correspond w/ the delivered product
-Before accepting, buyer is entitled to inspection to ensure it is of agreed quality
-If does not comply w/ implied standard, buyer may return merx and cancel agreement w/in 10 business days

Question 30

What is res litigiosa

Answer 30

A doctrine that states where a 2nd sale occurs (pending litigation), rights of the 1st purchaser prevail and are enforceable against the 2nd purchaser (regardless if 2nd purchaser acted in good/bad faith)

Question 31

Describe alienation as an important concept in the contract of land

Answer 31

Means to sell, exchange or donate irrespective of the fact that its subject to a suspensive condition

Question 32

Describe land as an important concept in the contract of land

Answer 32

Includes any unit, any right to claim transfer of land, any undivided share in land

Question 33

Describe deed of alienation as an important concept in the contract of land

Answer 33

A document(s) in terms of which land is alienated and has a wider meaning than a “contract”