CLA1502
Assignment 1
Semester 1
Due March 2026
, QUESTION 1
1.1 Common-law right of the purchaser to be protected against eviction
Under South African common law, a purchaser is protected by the seller through the
warranty against eviction. This means the seller guarantees that the purchaser will
obtain undisturbed possession and use of the thing sold. If a third party with a better
legal right later deprives the purchaser of the property, the seller must protect the
purchaser and may be held liable for the loss suffered. The duty exists even if it is not
expressly mentioned in the contract, because it is implied by law (Du Plessis et al.,
2019).
For eviction to succeed, the purchaser must generally notify the seller of the third party’s
claim and allow the seller to defend the action. If the third party succeeds and the
purchaser loses the property, the seller must refund the purchase price and
compensate the purchaser for any damages suffered, such as legal costs or
consequential loss (Van der Merwe et al., 2012).
Example: Sipho buys a laptop from Thabo. Later, the police seize the laptop because it
was originally stolen from the true owner. The true owner proves ownership and takes
back the laptop. Sipho has now been evicted by a third party with a better title. In terms
of the common-law warranty against eviction, Thabo must refund Sipho and
compensate him for his losses because Sipho did not receive undisturbed possession
of the item he bought.
1.2 Requirements for transfer of ownership in movables
Ownership of movable property passes only when two key requirements are met.
First, there must be delivery of the movable. Delivery involves the transfer of physical
control or possession of the item from the transferor to the transferee. This can occur
through actual handing over of the item or through recognised forms such as symbolic
delivery (Du Plessis et al., 2019).
Assignment 1
Semester 1
Due March 2026
, QUESTION 1
1.1 Common-law right of the purchaser to be protected against eviction
Under South African common law, a purchaser is protected by the seller through the
warranty against eviction. This means the seller guarantees that the purchaser will
obtain undisturbed possession and use of the thing sold. If a third party with a better
legal right later deprives the purchaser of the property, the seller must protect the
purchaser and may be held liable for the loss suffered. The duty exists even if it is not
expressly mentioned in the contract, because it is implied by law (Du Plessis et al.,
2019).
For eviction to succeed, the purchaser must generally notify the seller of the third party’s
claim and allow the seller to defend the action. If the third party succeeds and the
purchaser loses the property, the seller must refund the purchase price and
compensate the purchaser for any damages suffered, such as legal costs or
consequential loss (Van der Merwe et al., 2012).
Example: Sipho buys a laptop from Thabo. Later, the police seize the laptop because it
was originally stolen from the true owner. The true owner proves ownership and takes
back the laptop. Sipho has now been evicted by a third party with a better title. In terms
of the common-law warranty against eviction, Thabo must refund Sipho and
compensate him for his losses because Sipho did not receive undisturbed possession
of the item he bought.
1.2 Requirements for transfer of ownership in movables
Ownership of movable property passes only when two key requirements are met.
First, there must be delivery of the movable. Delivery involves the transfer of physical
control or possession of the item from the transferor to the transferee. This can occur
through actual handing over of the item or through recognised forms such as symbolic
delivery (Du Plessis et al., 2019).
