LPL4801 / LPL4805 LAW OF SALE AND LEASE / NOTORIAL REAL
QUESTIONS + DETAILED ANSWERS - LATEST VERSION - TOP RATED
UNISA — LLB Programme
Q1. What is a contract of sale in South African law?
Answer: A contract of sale is a reciprocal agreement between two parties
(the seller and buyer) where the seller undertakes to deliver a thing (merx)
and transfer ownership thereof to the buyer, and the buyer undertakes to
pay a purchase price (pretium) in return.
Q2. What are the three essential elements of a valid contract of sale?
Answer: The three essential elements (essentialia) are: (1) Agreement on
the merx (thing sold); (2) Agreement on the pretium (purchase price); and
(3) Intention to buy and sell (animus contrahendi).
Q3. What is the merx in a contract of sale?
Answer: The merx is the object of the sale — the thing being sold. It can
be corporeal or incorporeal property, existing or future things, and must be
specific or determinable, possible to deliver, and lawful.
Q4. What is the pretium in a contract of sale?
Answer: The pretium is the purchase price — the monetary consideration
the buyer pays for the merx. It must be in money (or money's worth),
certain or ascertainable, real (not simulated), and not grossly
disproportionate to the value of the merx.
Q5. Can the purchase price be determined by a third party?
Answer: Yes. The price may be left to a third party to determine (arbitrium
boni viri), as long as the method of determination is agreed upon. If the
third party fails to determine the price, the contract may be void unless
another mechanism is agreed.
,Q6. Distinguish between a sale and a barter (exchange).
Answer: In a sale, the consideration is money (pretium). In a barter
(permutatio), the consideration is another thing. If part money and part
goods are exchanged, the contract is classified by looking at which
component is more dominant — if money predominates, it is a sale; if
goods predominate, it is a barter.
Q7. What is meant by the term 'res aliena' in the context of sale?
Answer: Res aliena means 'another's thing'. A person can sell another
person's property. Such a sale is valid, but the seller is obliged to obtain the
thing and deliver it to the buyer. The risk is that the true owner may recover
the thing from the buyer (eviction).
Q8. What is a sale of a future thing (res futura)?
Answer: A res futura is a sale of something that does not yet exist but is
expected to exist in the future. It can be a conditional sale (emptio spei) —
where the buyer takes the risk — or a sale of a hoped-for thing (emptio rei
speratae) — which is conditional on the thing coming into existence.
Q9. Explain the concept of emptio spei.
Answer: Emptio spei (purchase of a hope) is an unconditional sale of a
future uncertain thing where the buyer bears the risk. The buyer must pay
even if the thing never comes into existence (e.g., buying the catch of a
fishing net before the net is drawn).
Q10. Explain the concept of emptio rei speratae.
Answer: Emptio rei speratae (purchase of an expected thing) is a
conditional sale of a future thing. The buyer pays only if the thing comes
into existence. If the thing does not come into existence, the seller has no
claim for the price (e.g., sale of next year's harvest).
Q11. Is a contract of sale subject to any general formality requirements?
Answer: Generally, no. A sale may be concluded orally, in writing, or by
conduct. However, specific statutes impose formalities — for example,
sales of immovable property must be in writing and signed by both parties
under the Alienation of Land Act 68 of 1981.
Q12. What is the effect of the Alienation of Land Act 68 of 1981 on the
sale of land?
, Answer: Section 2(1) of the Alienation of Land Act requires that a contract
for the alienation of land must be in writing, signed by the parties or their
agents acting under written authority. A failure to comply renders the
contract void.
Q13. What are the duties of the seller in a contract of sale?
Answer: The seller's main duties are: (1) to deliver the merx (traditio); (2)
to warrant against eviction (guarantee of ownership); and (3) to warrant
against latent defects in the merx.
Q14. What are the duties of the buyer in a contract of sale?
Answer: The buyer's main duties are: (1) to pay the purchase price
(pretium); (2) to accept delivery of the merx; and (3) to take care of the
merx from the moment risk passes.
Q15. When does ownership of the merx transfer from seller to buyer?
Answer: Ownership transfers upon delivery (traditio) — actual or
constructive — combined with intention to transfer ownership (causa
traditionis). Payment of the price is not required for ownership to pass,
unless a reservation of ownership clause (pactum reservati dominii) has
been included.
SECTION 2: RISK AND OWNERSHIP
Q16. What is the rule regarding risk (periculum) in a contract of sale?
Answer: Under the common law rule periculum est emptoris (the risk is the
buyer's), once a sale is perfecta (perfect), the risk passes to the buyer,
even if delivery has not yet taken place and ownership has not transferred.
Q17. When is a sale considered perfecta (perfect)?
Answer: A sale is perfecta when: (1) the parties have agreed on the merx;
(2) they have agreed on the price; and (3) the sale is not subject to any
suspensive condition. For specific goods, the sale is perfecta at conclusion;
for generic goods, when the goods are individualized (ascertained).
Q18. Does the periculum est emptoris rule apply to all sales?
Answer: No. The rule has been criticized and may be excluded by
agreement. It does not apply when the seller is in mora (default) of delivery;
, if the seller caused the loss; or if statute or agreement provides otherwise.
The Consumer Protection Act 68 of 2008 has also significantly modified
risk in consumer sales.
Q19. What is the effect of a 'pactum reservati dominii'?
Answer: A pactum reservati dominii is a reservation of ownership clause
where the seller retains ownership of the merx until the purchase price is
fully paid. Despite this, risk may still pass to the buyer on perfecta. This
clause is common in instalment sale agreements.
Q20. How does the National Credit Act 34 of 2005 affect instalment sale
agreements?
Answer: The NCA regulates credit agreements including instalment sales
where the buyer pays in instalments. It requires registration of credit
providers, disclosure of credit terms, and provides consumer protections
such as the right to rescind a credit agreement within 5 business days of
receipt (cooling-off period in specific cases).
Q21. What happens to risk when the seller is in mora (default)?
Answer: When the seller is in mora of delivery, the risk reverts to the
seller. The buyer is not responsible for accidental loss or damage occurring
while the seller is in default of his delivery obligation.
Q22. What is casus fortuitus and how does it relate to risk in sale?
Answer: Casus fortuitus means an unforeseeable accident or act of God
(force majeure). Under the periculum est emptoris rule, once risk passes to
the buyer, the buyer bears loss caused by casus fortuitus and must still pay
the purchase price even though the thing is destroyed.
Q23. Distinguish between specific goods and generic goods in the
context of risk.
Answer: Specific goods (res certae) are individually identified at the time of
sale; risk passes on perfecta. Generic goods (res generis) are defined by
type and quantity only; risk passes when the goods are individualized
(ascertained/separated) from the bulk.
Q24. What is the significance of individualization of goods?
Answer: Individualization (ascertainment) is the process by which generic
goods become specific — they are separated from the bulk, measured,
QUESTIONS + DETAILED ANSWERS - LATEST VERSION - TOP RATED
UNISA — LLB Programme
Q1. What is a contract of sale in South African law?
Answer: A contract of sale is a reciprocal agreement between two parties
(the seller and buyer) where the seller undertakes to deliver a thing (merx)
and transfer ownership thereof to the buyer, and the buyer undertakes to
pay a purchase price (pretium) in return.
Q2. What are the three essential elements of a valid contract of sale?
Answer: The three essential elements (essentialia) are: (1) Agreement on
the merx (thing sold); (2) Agreement on the pretium (purchase price); and
(3) Intention to buy and sell (animus contrahendi).
Q3. What is the merx in a contract of sale?
Answer: The merx is the object of the sale — the thing being sold. It can
be corporeal or incorporeal property, existing or future things, and must be
specific or determinable, possible to deliver, and lawful.
Q4. What is the pretium in a contract of sale?
Answer: The pretium is the purchase price — the monetary consideration
the buyer pays for the merx. It must be in money (or money's worth),
certain or ascertainable, real (not simulated), and not grossly
disproportionate to the value of the merx.
Q5. Can the purchase price be determined by a third party?
Answer: Yes. The price may be left to a third party to determine (arbitrium
boni viri), as long as the method of determination is agreed upon. If the
third party fails to determine the price, the contract may be void unless
another mechanism is agreed.
,Q6. Distinguish between a sale and a barter (exchange).
Answer: In a sale, the consideration is money (pretium). In a barter
(permutatio), the consideration is another thing. If part money and part
goods are exchanged, the contract is classified by looking at which
component is more dominant — if money predominates, it is a sale; if
goods predominate, it is a barter.
Q7. What is meant by the term 'res aliena' in the context of sale?
Answer: Res aliena means 'another's thing'. A person can sell another
person's property. Such a sale is valid, but the seller is obliged to obtain the
thing and deliver it to the buyer. The risk is that the true owner may recover
the thing from the buyer (eviction).
Q8. What is a sale of a future thing (res futura)?
Answer: A res futura is a sale of something that does not yet exist but is
expected to exist in the future. It can be a conditional sale (emptio spei) —
where the buyer takes the risk — or a sale of a hoped-for thing (emptio rei
speratae) — which is conditional on the thing coming into existence.
Q9. Explain the concept of emptio spei.
Answer: Emptio spei (purchase of a hope) is an unconditional sale of a
future uncertain thing where the buyer bears the risk. The buyer must pay
even if the thing never comes into existence (e.g., buying the catch of a
fishing net before the net is drawn).
Q10. Explain the concept of emptio rei speratae.
Answer: Emptio rei speratae (purchase of an expected thing) is a
conditional sale of a future thing. The buyer pays only if the thing comes
into existence. If the thing does not come into existence, the seller has no
claim for the price (e.g., sale of next year's harvest).
Q11. Is a contract of sale subject to any general formality requirements?
Answer: Generally, no. A sale may be concluded orally, in writing, or by
conduct. However, specific statutes impose formalities — for example,
sales of immovable property must be in writing and signed by both parties
under the Alienation of Land Act 68 of 1981.
Q12. What is the effect of the Alienation of Land Act 68 of 1981 on the
sale of land?
, Answer: Section 2(1) of the Alienation of Land Act requires that a contract
for the alienation of land must be in writing, signed by the parties or their
agents acting under written authority. A failure to comply renders the
contract void.
Q13. What are the duties of the seller in a contract of sale?
Answer: The seller's main duties are: (1) to deliver the merx (traditio); (2)
to warrant against eviction (guarantee of ownership); and (3) to warrant
against latent defects in the merx.
Q14. What are the duties of the buyer in a contract of sale?
Answer: The buyer's main duties are: (1) to pay the purchase price
(pretium); (2) to accept delivery of the merx; and (3) to take care of the
merx from the moment risk passes.
Q15. When does ownership of the merx transfer from seller to buyer?
Answer: Ownership transfers upon delivery (traditio) — actual or
constructive — combined with intention to transfer ownership (causa
traditionis). Payment of the price is not required for ownership to pass,
unless a reservation of ownership clause (pactum reservati dominii) has
been included.
SECTION 2: RISK AND OWNERSHIP
Q16. What is the rule regarding risk (periculum) in a contract of sale?
Answer: Under the common law rule periculum est emptoris (the risk is the
buyer's), once a sale is perfecta (perfect), the risk passes to the buyer,
even if delivery has not yet taken place and ownership has not transferred.
Q17. When is a sale considered perfecta (perfect)?
Answer: A sale is perfecta when: (1) the parties have agreed on the merx;
(2) they have agreed on the price; and (3) the sale is not subject to any
suspensive condition. For specific goods, the sale is perfecta at conclusion;
for generic goods, when the goods are individualized (ascertained).
Q18. Does the periculum est emptoris rule apply to all sales?
Answer: No. The rule has been criticized and may be excluded by
agreement. It does not apply when the seller is in mora (default) of delivery;
, if the seller caused the loss; or if statute or agreement provides otherwise.
The Consumer Protection Act 68 of 2008 has also significantly modified
risk in consumer sales.
Q19. What is the effect of a 'pactum reservati dominii'?
Answer: A pactum reservati dominii is a reservation of ownership clause
where the seller retains ownership of the merx until the purchase price is
fully paid. Despite this, risk may still pass to the buyer on perfecta. This
clause is common in instalment sale agreements.
Q20. How does the National Credit Act 34 of 2005 affect instalment sale
agreements?
Answer: The NCA regulates credit agreements including instalment sales
where the buyer pays in instalments. It requires registration of credit
providers, disclosure of credit terms, and provides consumer protections
such as the right to rescind a credit agreement within 5 business days of
receipt (cooling-off period in specific cases).
Q21. What happens to risk when the seller is in mora (default)?
Answer: When the seller is in mora of delivery, the risk reverts to the
seller. The buyer is not responsible for accidental loss or damage occurring
while the seller is in default of his delivery obligation.
Q22. What is casus fortuitus and how does it relate to risk in sale?
Answer: Casus fortuitus means an unforeseeable accident or act of God
(force majeure). Under the periculum est emptoris rule, once risk passes to
the buyer, the buyer bears loss caused by casus fortuitus and must still pay
the purchase price even though the thing is destroyed.
Q23. Distinguish between specific goods and generic goods in the
context of risk.
Answer: Specific goods (res certae) are individually identified at the time of
sale; risk passes on perfecta. Generic goods (res generis) are defined by
type and quantity only; risk passes when the goods are individualized
(ascertained/separated) from the bulk.
Q24. What is the significance of individualization of goods?
Answer: Individualization (ascertainment) is the process by which generic
goods become specific — they are separated from the bulk, measured,
