201/2/2008
Question 1
Which one of the following statements is correct?
(1) A valid contract of sale is concluded only after the seller has delivered the thing sold to the
purchaser
(2) In SA Wood Turning Mills (Pty) Ltd v Price Bros (Pty) Ltd the court held that the contract was a
locatio conductio operis
(3) An emptio spei is a contract of sale subject to a suspensive condition
(4) A contract of sale in which a dentist undertakes to make a set of dentures with the dentist’s own
material for a patient for R2000 is an emptio rei speratae
FEEDBACK: IN SA WOOD TURNING MILLS (PTY) LTD V PRICE BROS (PTY) LTD THE COURT HELD THAT WHERE A PERSON
MAKES AN ARTICLE FROM HIS OWN MATERIAL FOR SOMEONE ELSE THE CONTRACT IS ONE OF SALE. IN THIS CASE IT IS THE
SALE OF A THING YET TO COME INTO EXISTENCE OR RATHER AN EMPTIO REI SPERATAE SEE FURTHER STUDY GUIDE 2 5-7.
Question 2
Jack agrees with John to sell his house to John for an amount of R750 000, including agent’s
commission. Later the agreement is reduced to writing but the contract does not stipulate that the
price includes agent’s commission although it does state that agent’s commission is payable by the
purchaser. Jack now asserts that John must pay agent’s commission in addition to the purchase
price. What would the appropriate remedy for John be in the circumstances:
(1) An action for breach of contract
(2) An action for declaring the contract void for material mistake
(3) An action based on misrepresentation
(4) A claim for rectification
FEEDBACK: THE DEED OF ALIENATION DOES NOT ACCURATELY REFLECT THE INTENTION OF THE PARTIES, BUT IT IS PRIMA
FACIE VALID AND THEREFORE IS CAPABLE OF BEING RECTIFIED. SEE FURTHER STUDY GUIDE 2 23-24.
Question 3
Which one of the following statements is incorrect?
(1) A person need not be the owner of a thing to validly sell it.
(2) The Aedilitian actions are available where the thing sold suffered from a latent defect.
(3) The seller’s liability for damage to the thing sold after conclusion of the contract but before
delivery is based in delict.
, FEEDBACK: THE SELLER’S LIABILITY FOR DAMAGE TO THE THING SOLD AFTER CONCLUSION OF THE CONTRACT BUT BEFORE
DELIVERY IS NOT BASED IN DELICT BUT IN CONTRACT. SEE FURTHER STUDY GUIDE 2 37-39.
(4) A registered servitude can interfere with the seller’s duty to deliver the thing sold
Question 4
Van der Merwe v Meades implies that where a sale agreement contains a voetstoots clause the
seller:
(1) will not be liable for breach of contract
(2) may be absolved from liability for fraudulent misrepresentation by way of omission
(3) may be absolved from liability for negligent misrepresentation by way of omission
(4) will not be liable on the basis of a tacit warranty
FEEDBACK: IN VAN DER MERWE V MEADES THE COURT HELD THAT WHERE THERE WAS AN OMISSION REGARDING A
LATENT DEFECT A SELLER WOULD ONLY BE DEPRIVED OF THE PROTECTION AFFORDED BY A VOETSTOOTS CLAUSE WHERE
THE PURCHASER COULD PROVE THAT THE SELLER WAS ACTUALLY AWARE OF THE EXISTENCE OF THE DEFECT AND DOLO
MALO OR INTENTIONALLY KEPT SILENT WITH THE PURPOSE OF DEFRAUDING HIM. THE IMPLICATION IS THAT WHERE THE
SELLER IS UNAWARE, BUT NEGLIGENT, HE MAY BE ABSOLVED FROM LIABILITY FOR NEGLIGENT MISREPRESENTATION (BY
WAY OF OMISSION) SPECIFICALLY AS REGARDS THE LATENT DEFECT. SEE FURTHER STUDY GUIDE 2 57.
Question 6
Which one of the following statements is incorrect?
(1) A thing which has not yet come into existence can be let
(2) Commodus usus includes the idea of profit where the lessee runs a business from the leased
premises
(3) Remission of rent may be viewed as a specific application of supervening impossibility of
performance
(4) In certain circumstances the lessor may be liable for consequential damages resulting from a
defect in the thing let
FEEDBACK: IN SISHEN HOTEL (EDMS) BPK V SUID-AFRIKAANSE YSTER- EN STAAL INDUSTRIËLE KORPORASIE BPK THE COURT
FOUND THAT IN THAT CASE COMMODUS USUS INCLUDED THE IDEA OF PROFIT WHERE THE LESSEE RAN A BUSINESS FROM
THE LEASED PREMISES. HOWEVER, THIS SEEMS TO AMOUNT TO A TACIT TERM IMPLIED WITHIN THE CIRCUMSTANCES OF
THAT CASE AS OPPOSED TO A TERM WHICH WOULD APPLY IN ALL CASES OF A SIMILAR NATURE (NATURALIA). THE
STATEMENT IN (2) IS THUS AN EXCEPTION AND NOT A GENERAL RULE. SEE SWEETS FROM HEAVEN (PTY) LTD V STER
KINEKOR FILMS (PTY) LTD AND STUDY GUIDE1 21-22.
Question 7
Question 1
Which one of the following statements is correct?
(1) A valid contract of sale is concluded only after the seller has delivered the thing sold to the
purchaser
(2) In SA Wood Turning Mills (Pty) Ltd v Price Bros (Pty) Ltd the court held that the contract was a
locatio conductio operis
(3) An emptio spei is a contract of sale subject to a suspensive condition
(4) A contract of sale in which a dentist undertakes to make a set of dentures with the dentist’s own
material for a patient for R2000 is an emptio rei speratae
FEEDBACK: IN SA WOOD TURNING MILLS (PTY) LTD V PRICE BROS (PTY) LTD THE COURT HELD THAT WHERE A PERSON
MAKES AN ARTICLE FROM HIS OWN MATERIAL FOR SOMEONE ELSE THE CONTRACT IS ONE OF SALE. IN THIS CASE IT IS THE
SALE OF A THING YET TO COME INTO EXISTENCE OR RATHER AN EMPTIO REI SPERATAE SEE FURTHER STUDY GUIDE 2 5-7.
Question 2
Jack agrees with John to sell his house to John for an amount of R750 000, including agent’s
commission. Later the agreement is reduced to writing but the contract does not stipulate that the
price includes agent’s commission although it does state that agent’s commission is payable by the
purchaser. Jack now asserts that John must pay agent’s commission in addition to the purchase
price. What would the appropriate remedy for John be in the circumstances:
(1) An action for breach of contract
(2) An action for declaring the contract void for material mistake
(3) An action based on misrepresentation
(4) A claim for rectification
FEEDBACK: THE DEED OF ALIENATION DOES NOT ACCURATELY REFLECT THE INTENTION OF THE PARTIES, BUT IT IS PRIMA
FACIE VALID AND THEREFORE IS CAPABLE OF BEING RECTIFIED. SEE FURTHER STUDY GUIDE 2 23-24.
Question 3
Which one of the following statements is incorrect?
(1) A person need not be the owner of a thing to validly sell it.
(2) The Aedilitian actions are available where the thing sold suffered from a latent defect.
(3) The seller’s liability for damage to the thing sold after conclusion of the contract but before
delivery is based in delict.
, FEEDBACK: THE SELLER’S LIABILITY FOR DAMAGE TO THE THING SOLD AFTER CONCLUSION OF THE CONTRACT BUT BEFORE
DELIVERY IS NOT BASED IN DELICT BUT IN CONTRACT. SEE FURTHER STUDY GUIDE 2 37-39.
(4) A registered servitude can interfere with the seller’s duty to deliver the thing sold
Question 4
Van der Merwe v Meades implies that where a sale agreement contains a voetstoots clause the
seller:
(1) will not be liable for breach of contract
(2) may be absolved from liability for fraudulent misrepresentation by way of omission
(3) may be absolved from liability for negligent misrepresentation by way of omission
(4) will not be liable on the basis of a tacit warranty
FEEDBACK: IN VAN DER MERWE V MEADES THE COURT HELD THAT WHERE THERE WAS AN OMISSION REGARDING A
LATENT DEFECT A SELLER WOULD ONLY BE DEPRIVED OF THE PROTECTION AFFORDED BY A VOETSTOOTS CLAUSE WHERE
THE PURCHASER COULD PROVE THAT THE SELLER WAS ACTUALLY AWARE OF THE EXISTENCE OF THE DEFECT AND DOLO
MALO OR INTENTIONALLY KEPT SILENT WITH THE PURPOSE OF DEFRAUDING HIM. THE IMPLICATION IS THAT WHERE THE
SELLER IS UNAWARE, BUT NEGLIGENT, HE MAY BE ABSOLVED FROM LIABILITY FOR NEGLIGENT MISREPRESENTATION (BY
WAY OF OMISSION) SPECIFICALLY AS REGARDS THE LATENT DEFECT. SEE FURTHER STUDY GUIDE 2 57.
Question 6
Which one of the following statements is incorrect?
(1) A thing which has not yet come into existence can be let
(2) Commodus usus includes the idea of profit where the lessee runs a business from the leased
premises
(3) Remission of rent may be viewed as a specific application of supervening impossibility of
performance
(4) In certain circumstances the lessor may be liable for consequential damages resulting from a
defect in the thing let
FEEDBACK: IN SISHEN HOTEL (EDMS) BPK V SUID-AFRIKAANSE YSTER- EN STAAL INDUSTRIËLE KORPORASIE BPK THE COURT
FOUND THAT IN THAT CASE COMMODUS USUS INCLUDED THE IDEA OF PROFIT WHERE THE LESSEE RAN A BUSINESS FROM
THE LEASED PREMISES. HOWEVER, THIS SEEMS TO AMOUNT TO A TACIT TERM IMPLIED WITHIN THE CIRCUMSTANCES OF
THAT CASE AS OPPOSED TO A TERM WHICH WOULD APPLY IN ALL CASES OF A SIMILAR NATURE (NATURALIA). THE
STATEMENT IN (2) IS THUS AN EXCEPTION AND NOT A GENERAL RULE. SEE SWEETS FROM HEAVEN (PTY) LTD V STER
KINEKOR FILMS (PTY) LTD AND STUDY GUIDE1 21-22.
Question 7
