Unit 1 - Chapter 1 - The Contract of Sale

Question 1

What is the ESSENTIALIA to a contract?

Answer 1

The Essentialia will determine the type of contract.

E.g. In a contract of sale you have:
→ an item
→ a price on the item

Once these 2 elements are present, you are dealing with a contract of sale.

Question 2

What is the NATURALIA to a contract?

Answer 2

After the essentialia has established that it is e.g. a contract of sale, the NATURALIA will put forth the requirements and duties of contracting parties.

Question 3

What is the INCIDENTALIA to a contract?

Answer 3

The INCIDENTALIA refers to any additional requirements or terms that needs to be added to the contract above the already existing Naturalia.

Question 4

What is a MERX?

Answer 4

It refers to the Object of Sale.

Question 5

Provide the definition for A CONTRACT OF SALE.

Answer 5

A contract in which one party undertakes to deliver the MERX, to another party, and the purchaser in exchange to this, agrees to pay the seller a certain SUM OF MONEY.

Question 6

In order for a contract of sale to be concluded, consensus must exists about what?

Answer 6

• The Merx, which must be definite(it can be named) or ascertainable( if it is a quantity - it can be weight or measured) - As long as it can form part of ones patrimony.
• The purchase price, which must be agreed upon and it must be in the form of money.

Question 7

What is the meaning of the word PATRIMONY.

Answer 7

It refers to ones estate. Thus it can be sold.

Question 8

Explain the difference between a DEBTOR and a CREDITOR.

Answer 8

Debtor → the party how AS TO PERFORM a specific obligation. (Purchaser)
Creditor → the party who is ENTITLED TO SUCH PERFORMANCE. (Seller)

Question 9

What is COMMON-LAW.

Answer 9

Common-law is a legal framework for contract.

The framework my be adjusted either expressly or tacitly.

Should no adjustments be made, the legal framework automatically takes effect.

Question 10

What is the COMMON-LAW RIGHTS of the PURCHASER.

Answer 10

1. He has the right to receive the MERX. Thus, it is available for the taking by the purchaser.
2. He has the right to have the MERX kept save until date of delivery.
3. He as the right to be protected by the seller against eviction.
   • Thus, the seller undertakes that the purchaser my freely use the merx without disruption from a third party with a better title to the merx. → Seller’s Warranty Against Eviction
4. He has the right to a MERX without any latent defects.

Question 11

What does it mean if the contract is PERFECTA?

Answer 11

It means that the risk as passed from the seller to the purchaser and the purchaser will be liable for any damage.

Question 12

Provide the requirements that must be met before a contract of sale can be PERFECTA.

Answer 12

1. The Merx must be definte and ascertainable.
   • Definite → I want to be a horse.
   • Ascertainable → I want to be that horse.
2. The purchase price must be ascertainable through simple calculation.
   • Price per sheep is known. The amount of sheep to purchase should also be known. Until the sheep has been counted, the contract will not yet be PERFECTA.
3. If the contract contained a suspension condition, it should be been fulfilled.
   • Thus, if the sale depended on you getting a loan, you have have obtained the loan in order for the contract to be PERFECTA.

Question 13

Explain the meaning of a latent defect.

Answer 13

It refers to a defect that was not visible upon reasonable inspection.