KTH 211 SALE THEME 4-8 THEORY Exam
Questions and Answers
1. Safe-keeping of Object Sold Correct Answer: · The first duty of the seller is to take care of
and protect the object from the time of conclusion of the contract until the object is delivered to the
buyer
·A buyer may claim damages from a seller for any damage caused by the seller's intentional or negligent
conduct.
2. Factors that influence the duty of safe-keeping - mora debitoris ,
mora credi- toris Correct Answer: · The mora debitoris or mora creditoris of the buyer and the mora
debitoris of the seller influence the duty of safe-keeping.
·Where the buyer is in mora debitoris or mora creditoris (where he fails to pay the price or fails to
receive the object sold), the seller will only be held liable for damages caused by his intentional or
grossly negligent conduct.
·Where the seller is in mora debitoris (where he fails to deliver the object sold), he is responsible for
any damage whatsoever, even in the absence of fault on his part.
·Mora creditoris of the seller (where he fails to receive payment) has no influence on the duty of safe-
keeping.
3. The culpable conduct of the seller resulting in the damage or
destruction of the object
sold, can be divided into the following Correct Answer: Correct Answer: (a) intentional
acts, where the seller intended the specific consequences of his act; or
(b) negligent acts, where the seller does not act in the way a reasonable man would have acted under
the same circum- stances. Negligence takes two forms, namely mere carelessness and gross negligence.
In this instance, coincidence or an act of God is irrelevant.
·As a general rule the seller will not be liable for damages where his conduct was without fault.
·Here, the so-called doctrine of the passing of risk has to be applied.
·The parties may change the duty of safe-keeping through agreement.
4. The passing-of-risk doctrine and its effect on the seller's duty of
safe-keep- ing; Correct Answer: The doctrine of the passing of the risk determines whether the
seller or the buyer bears the risk where accidental damage is caused to the object either by coincidence or
by acts of God, and not by the culpable conduct of either party. The general rule is that the owner sutters
,KTH 211 SALE THEME 4-8 THEORY Exam
Questions and Answers
the loss when his property is destroyed.
The seller, while retaining ownership, would bear the burden of the total or partial destruction of the object,
without being able to claim the purchase price from the buyer.
5. A contract is perfecta when Correct Answer: Correct Answer: (a) the buyer and the
seller have the intention of buying and selling;
(b) the object to be sold is determined. In the case of Correct Answer:
(i) an emptio rei speratae, the object sold is fixed after being measured or weighed;
(ii) an emptio spei, the object sold is fixed as soon as the contract is concluded; and
(iii) a generic sale, the object sold is fixed after individualisation;
,KTH 211 SALE THEME 4-8 THEORY Exam
Questions and Answers
(c) the purchase price is determined; and
(d) the contract is not subject to a suspensive condition.
6. The importance and application of perfecta to the passing-of-risk
doctrine; Correct Answer: -
-The result is that the buyer bears the risk where the object is damaged or destroyed through coincidence
or an act of God.
-The buyer is still liable to pay the purchase price even where the seller has not yet delivered the object
to him. - This is a naturale of any contract of sale and the parties may by agreement exclude or
change
· Generally the risk for damage will be on the true owner for damage unless the sale is perfecta.
-If the sale is perfecta then risk passes to the buyer
7. Influence of the Consumer Protection Act on risk Correct Answer: ·
provides that in the absence of an express agreement to the contrary, goods to be delivered,
remain at the supplier's (seller's) risk until the consumer (purchaser) has accepted delivery [section
19(2)(c)].
8. Acceptance of delivery is deemed Correct Answer: Correct Answer: 1) when a
consumer expressly or implicitly communicates to
a supplier that he or she has accepted delivery of such goods,
2) or if a consumer does anything in relation to the goods that is inconsistent with the supplier's
ownership,
3) or if a consumer keeps the goods for an unreasonable period without informing the supplier that
he or she does not want it [section 19(4)].
* These provisions do not apply to franchise agreements or where the transaction is governed by
section 46 of the Electronic Communications and Transactions Act 25 of 2005.
9. Damage and advantage Correct Answer: · All damage caused to the object of sale without
the fault of any of the parties
is borne by either the seller or the buyer, as set out above.
·Such damage may be caused by many ditterent factors (for example fire, floods, earthquakes or war),
as long as it is due to coincidence or an act of God, and not to the culpable conduct of either the seller
or the buyer.
·Any advantage or benefit derived from the object sold after conclusion of the contract but before
,KTH 211 SALE THEME 4-8 THEORY Exam
Questions and Answers
delivery, is also allocated to one of the parties according to the rules as set out above.
·The principles as applied to the passing of the risk also apply to the allocation of benefits.
·Advantages may consist of natural accrual (also known as accessory accrual) of the object of sale (for
example, where a cow has a calf after date of sale but before delivery of the cow to the buyer), or those
benefits (also known as substitutive advantages) which form an inherent part of the object sold (for
example, to bring a civil action against a thief after conclusion of the contract but before delivery of the
object sold).
10. The principles that the mere conclusion of a contract of sale does
not transfer
ownership to the buyer, that the seller does not have to be the owner
of
Questions and Answers
1. Safe-keeping of Object Sold Correct Answer: · The first duty of the seller is to take care of
and protect the object from the time of conclusion of the contract until the object is delivered to the
buyer
·A buyer may claim damages from a seller for any damage caused by the seller's intentional or negligent
conduct.
2. Factors that influence the duty of safe-keeping - mora debitoris ,
mora credi- toris Correct Answer: · The mora debitoris or mora creditoris of the buyer and the mora
debitoris of the seller influence the duty of safe-keeping.
·Where the buyer is in mora debitoris or mora creditoris (where he fails to pay the price or fails to
receive the object sold), the seller will only be held liable for damages caused by his intentional or
grossly negligent conduct.
·Where the seller is in mora debitoris (where he fails to deliver the object sold), he is responsible for
any damage whatsoever, even in the absence of fault on his part.
·Mora creditoris of the seller (where he fails to receive payment) has no influence on the duty of safe-
keeping.
3. The culpable conduct of the seller resulting in the damage or
destruction of the object
sold, can be divided into the following Correct Answer: Correct Answer: (a) intentional
acts, where the seller intended the specific consequences of his act; or
(b) negligent acts, where the seller does not act in the way a reasonable man would have acted under
the same circum- stances. Negligence takes two forms, namely mere carelessness and gross negligence.
In this instance, coincidence or an act of God is irrelevant.
·As a general rule the seller will not be liable for damages where his conduct was without fault.
·Here, the so-called doctrine of the passing of risk has to be applied.
·The parties may change the duty of safe-keeping through agreement.
4. The passing-of-risk doctrine and its effect on the seller's duty of
safe-keep- ing; Correct Answer: The doctrine of the passing of the risk determines whether the
seller or the buyer bears the risk where accidental damage is caused to the object either by coincidence or
by acts of God, and not by the culpable conduct of either party. The general rule is that the owner sutters
,KTH 211 SALE THEME 4-8 THEORY Exam
Questions and Answers
the loss when his property is destroyed.
The seller, while retaining ownership, would bear the burden of the total or partial destruction of the object,
without being able to claim the purchase price from the buyer.
5. A contract is perfecta when Correct Answer: Correct Answer: (a) the buyer and the
seller have the intention of buying and selling;
(b) the object to be sold is determined. In the case of Correct Answer:
(i) an emptio rei speratae, the object sold is fixed after being measured or weighed;
(ii) an emptio spei, the object sold is fixed as soon as the contract is concluded; and
(iii) a generic sale, the object sold is fixed after individualisation;
,KTH 211 SALE THEME 4-8 THEORY Exam
Questions and Answers
(c) the purchase price is determined; and
(d) the contract is not subject to a suspensive condition.
6. The importance and application of perfecta to the passing-of-risk
doctrine; Correct Answer: -
-The result is that the buyer bears the risk where the object is damaged or destroyed through coincidence
or an act of God.
-The buyer is still liable to pay the purchase price even where the seller has not yet delivered the object
to him. - This is a naturale of any contract of sale and the parties may by agreement exclude or
change
· Generally the risk for damage will be on the true owner for damage unless the sale is perfecta.
-If the sale is perfecta then risk passes to the buyer
7. Influence of the Consumer Protection Act on risk Correct Answer: ·
provides that in the absence of an express agreement to the contrary, goods to be delivered,
remain at the supplier's (seller's) risk until the consumer (purchaser) has accepted delivery [section
19(2)(c)].
8. Acceptance of delivery is deemed Correct Answer: Correct Answer: 1) when a
consumer expressly or implicitly communicates to
a supplier that he or she has accepted delivery of such goods,
2) or if a consumer does anything in relation to the goods that is inconsistent with the supplier's
ownership,
3) or if a consumer keeps the goods for an unreasonable period without informing the supplier that
he or she does not want it [section 19(4)].
* These provisions do not apply to franchise agreements or where the transaction is governed by
section 46 of the Electronic Communications and Transactions Act 25 of 2005.
9. Damage and advantage Correct Answer: · All damage caused to the object of sale without
the fault of any of the parties
is borne by either the seller or the buyer, as set out above.
·Such damage may be caused by many ditterent factors (for example fire, floods, earthquakes or war),
as long as it is due to coincidence or an act of God, and not to the culpable conduct of either the seller
or the buyer.
·Any advantage or benefit derived from the object sold after conclusion of the contract but before
,KTH 211 SALE THEME 4-8 THEORY Exam
Questions and Answers
delivery, is also allocated to one of the parties according to the rules as set out above.
·The principles as applied to the passing of the risk also apply to the allocation of benefits.
·Advantages may consist of natural accrual (also known as accessory accrual) of the object of sale (for
example, where a cow has a calf after date of sale but before delivery of the cow to the buyer), or those
benefits (also known as substitutive advantages) which form an inherent part of the object sold (for
example, to bring a civil action against a thief after conclusion of the contract but before delivery of the
object sold).
10. The principles that the mere conclusion of a contract of sale does
not transfer
ownership to the buyer, that the seller does not have to be the owner
of
