1
LAW OF SALE AND
LEASE
STUDY GUIDE 1- Learning Outcomes
Study Unit 1: Introduction to the contract of lease
1. Explain the relationship between the general principles of contract and specific contracts
2. Explain how and why contracts are assigned to different classes (types)
3. Set out the essentialia of a contract
4. Set out the naturalia of a contract
Study Unit 2: Definition and essential elements
5. Define a contract of lease
6. Set out the requirements for a valid contract
7. Set out the essential elements of a contract of lease
Study Unit 3: Legality of contracts of lease
8. Explain the general principle of legality
9. Explain what an “illegal lease” means
10. Explain the effect of illegality
11. Explain the ex turpi causa non oritur actio rule
12. Explain the in pari delicto rule
13. Explain the relaxation of the in pari delicto rule
Study Unit 4: The obligations of the lessor
14. Set out the different obligations of the lessor
15. Understand that failure to fulfill an obligation is a form of breach of contract by the lessor, and be
able to identify the form of breach of contract and set out the relevant remedies available to the
lessee
Study Unit 5: The lessor must deliver the thing
16. Explain the lessor's obligation to deliver the leased thing and the remedies available to the lessee
should the lessor fail
Study Unit 6: The lessor may not disturb the tenant in his possession - the duty to give undisturbed use
and enjoyment (commodus usus)
17. Explain the lessor's duty to give commodus usus
18. Explain the content of commodus usus
,LPL401-8 2
19. Briefly set out the facts of any relevant prescribed cases, the decisions in such cases and the reasons
for such decisions
20. Apply the rules discussed here, and any relevant prescribed cases to practical problems
Study Unit 7: The lessor must deliver the thing in a specific condition and maintain it thus
21. Explain the lessor's obligation to deliver the leased thing in a specific condition
22. Explain the lessor's obligation to maintain the leased thing in the specific condition during the
currency of the lease
23. Explain whether this duty is a contractual duty or an ex lege warranty
24. Explain and apply the remedies available to the lessee where the lessor breaches his or her
obligation
Study Unit 8: The landlord must guarantee the tenant against eviction
25. Explain the lessee's rights against a landlord where the lessee is evicted 26.
Explain the lessee's remedies in the event of eviction
Study Unit 9: The tenant's duties
27. Explain that the lessee has an obligation to pay the rent
28. Explain that the lessee has an obligation to use the property in a proper manner
Study Unit 10: The tenant must pay the rent
29. Explain the implications of certainty of rent
30. Explain the implications of place of payment
31. Explain the implications of time of payment
32. Explain the consequences of a failure to pay the rent on time
33. Explain what is meant by the presumption of payment
34. Briefly set out the fact of any relevant prescribed cases, the decisions in such cases and the reasons
for such decisions
35. Apply the rules discussed here, and any relevant prescribed cases to practical problems
Study Unit 11: The tenant must use the thing in a proper manner
36. Explain that the lessee has an obligation to use the leased property for the purpose for which it was
let
37. Explain the rules, which apply to the planting of trees
38. Explain the lessor's remedies where the lessee misuses the property
39. Explain the lessee's obligation to vacate the property and return it upon termination of the lease
Study Unit 12:The tenants real right
40. Explain what the huur gaat voor koop rule means
41. Explain to what type of leases the huur gaat voor koop rule is applicable
42. Explain how the lessee's real right is established
43. Explain the difference between onerous and gratuitous successors
44. Explain the effect of the lessee's real right
45. Briefly set out the fact of any relevant prescribed cases, the decisions in such cases and the reasons
for such decisions
46. Apply the rules discussed here, and any relevant prescribed cases to practical problems
Study Unit 13: The lessor's tacit hypothec to secure the rent
47. Explain the nature of the lessor's hypothec
48. Explain what goods are subject to the hypothec
49. Explain whose goods are subject to the hypothec
50. Explain what debts are secured by the hypothec
51. Explain the legal effect of the hypothec
52. Explain how the doctrine of quick pursuit operates
, 3
Study Unit 14: Remission of rent
53. Explain what is meant by remission of rent
54. Explain what is meant by Vis maior and casus fortuitus
55. Explain when abandonment of property is possible
56. Explain by what amount the rent can be reduced
Study Unit 15: Compensation for improvements
57. Explain the type of leases to which the placaats apply
58. Explain the position regarding improvements on agricultural leases
59. Explain what is meant by an annexure
60. Explain the position regarding improvements on other leases
61. Explain the lessee's right to remove the annexure
Study Unit 16: Subletting, cession, delegation and assignation
62. Explain what is meant by subletting
63. Explain whether rural and urban premises may be sublet
64. Explain what cession means
Study Unit 17: The termination of a lease
65. Explain how a contract of lease can be terminated by mutual agreement; effluxion of time; notice;
merger; destruction of the property; rescission of the contract; extinction of landlord's title;
insolvency; death and legislation.
Study Unit 18: The Rental Housing Act 50 of 1999
66. Explain the application of the Rental Housing Act
67. Explain and distinguish the general and statutory provisions
68. Explain what the function and powers of the rental housing tribunal is
69. Explain the function of the rental housing information offices
70. Explain all the offences and penalties created by the Act
STUDY GUIDE 1- Notes
Study Unit 1: Introduction to the contract of lease
The relationship between the general principles of contract and specific contracts
Every specific contract is a contract, which means that all the general principles of the law of contract apply
to it
How and why contracts are assigned to different classes (types)
⇒ It Is the content (terms) of a contract which determines whether it is to be assigned to a specific class
of contracts or whether it is to be regarded as a contract sui generis- a contract which does not fit into
any particular contract
The essentialia of a contract
⇒ The essentialia are not terms that are essential for the validity of the contract, they are terms that are
essential for the classification of a contract as one of a specific type i.e. determine the category into
which a contract falls
⇒ Essentialia of a contract of sale:
1. An undertaking by the one contractant (the seller) to deliver a thing to his or her co-contractant
2. An undertaking by the co-contractant to pay a sum of money in exchange for the thing
⇒ Any specific contract is defined in terms of its essentialia
The naturalia of a contract
⇒ The class to which a particular contract belongs determines its naturalia included in the contract by
operation of law (ex lege)- need not be expressly negotiated by the parties
, LPL401-8 4
⇒ It is necessary to classify a contract as a specific type as this is required to determine the natural terms
of the contract.
⇒ May be excluded by agreement between the parties to a particular contract of that class
⇒ The parties are free to insert as many additional terms as the like- these are called incidental terms
Study Unit 2: Definition and essential elements
3 types of letting and hiring: the hiring of services which are conducted under supervision; the hiring of a
person’s services in order to obtain the results of the labour such as building a house and the letting and
hiring of a thing which can be either movable or immovable
Definition a contract of lease
It is a reciprocal agreement between one party, namely the lessor, and another party, namely the lessee,
where by the lessor binds himself or herself to give to the lessee the temporary use and enjoyment of the
thing, in return for the payment of the rent The requirements for a valid contract
⇒ There are 6 absolute requirements:
1. Consensus or apparent consensus
2. The parties must have contractual capacity
3. Prescribed formalities must be complied with
4. The obligations created by the contract must be possible of performance
5. The contractual agreement must be legal
6. Performance must be determined or determinable
The essential elements of a contract of lease
1. The lessor must delivers and the lessee must receive a thing or property for the temporary use and
enjoyment of this thing or the property
2. There must be a thing or property which is being let
3. An amount of rent must be paid for the use and enjoyment of the leased thing
The parties must agree to deliver and receive a particular thing
⇒ An expression of the general requirement that performance must be possible
⇒ Supervening impossibility: where performance becomes impossible through no fault of the lessor.
Obligations are terminated.
⇒ Prevention of performance: absolute or objective impossibility of performance- where performance is
prevented permanently as regards everyone, and relative or subjective prevention of performance-
where it is only performance by the debtor which is rendered impossible (breach of contract in the form
of prevention of performance
The letting and hiring of the leased thing must be temporary and not in perpetuity
⇒ A lease cannot be forever; only a contract in which the temporary use and enjoyment of the thing is
granted to one of the parties can be a lease.
⇒ The requirement that a contract of lease must be of limited duration is complied with in the following
cases: (i.e. temporary lease)
If the lease is to run for a definite period
If the lease is to run until the occurrence of an event which is sure to occur although the date of
its occurrence may be uncertain
If the lease is at the will or either the lessor or the lessee
If the lease is for an indefinite time with the rent payable periodically (in such a case the lease
may be terminated by either party by reasonable notice given to the other
The thing subject to the lease can either be corporeal or incorporeal or an object still to come into
existence
⇒ In Young v Smith and Another it was argued, on the strength of Graham v Local and Overseas
Investments that there is no doubt that an incorporeal thing can form part of a lease
LAW OF SALE AND
LEASE
STUDY GUIDE 1- Learning Outcomes
Study Unit 1: Introduction to the contract of lease
1. Explain the relationship between the general principles of contract and specific contracts
2. Explain how and why contracts are assigned to different classes (types)
3. Set out the essentialia of a contract
4. Set out the naturalia of a contract
Study Unit 2: Definition and essential elements
5. Define a contract of lease
6. Set out the requirements for a valid contract
7. Set out the essential elements of a contract of lease
Study Unit 3: Legality of contracts of lease
8. Explain the general principle of legality
9. Explain what an “illegal lease” means
10. Explain the effect of illegality
11. Explain the ex turpi causa non oritur actio rule
12. Explain the in pari delicto rule
13. Explain the relaxation of the in pari delicto rule
Study Unit 4: The obligations of the lessor
14. Set out the different obligations of the lessor
15. Understand that failure to fulfill an obligation is a form of breach of contract by the lessor, and be
able to identify the form of breach of contract and set out the relevant remedies available to the
lessee
Study Unit 5: The lessor must deliver the thing
16. Explain the lessor's obligation to deliver the leased thing and the remedies available to the lessee
should the lessor fail
Study Unit 6: The lessor may not disturb the tenant in his possession - the duty to give undisturbed use
and enjoyment (commodus usus)
17. Explain the lessor's duty to give commodus usus
18. Explain the content of commodus usus
,LPL401-8 2
19. Briefly set out the facts of any relevant prescribed cases, the decisions in such cases and the reasons
for such decisions
20. Apply the rules discussed here, and any relevant prescribed cases to practical problems
Study Unit 7: The lessor must deliver the thing in a specific condition and maintain it thus
21. Explain the lessor's obligation to deliver the leased thing in a specific condition
22. Explain the lessor's obligation to maintain the leased thing in the specific condition during the
currency of the lease
23. Explain whether this duty is a contractual duty or an ex lege warranty
24. Explain and apply the remedies available to the lessee where the lessor breaches his or her
obligation
Study Unit 8: The landlord must guarantee the tenant against eviction
25. Explain the lessee's rights against a landlord where the lessee is evicted 26.
Explain the lessee's remedies in the event of eviction
Study Unit 9: The tenant's duties
27. Explain that the lessee has an obligation to pay the rent
28. Explain that the lessee has an obligation to use the property in a proper manner
Study Unit 10: The tenant must pay the rent
29. Explain the implications of certainty of rent
30. Explain the implications of place of payment
31. Explain the implications of time of payment
32. Explain the consequences of a failure to pay the rent on time
33. Explain what is meant by the presumption of payment
34. Briefly set out the fact of any relevant prescribed cases, the decisions in such cases and the reasons
for such decisions
35. Apply the rules discussed here, and any relevant prescribed cases to practical problems
Study Unit 11: The tenant must use the thing in a proper manner
36. Explain that the lessee has an obligation to use the leased property for the purpose for which it was
let
37. Explain the rules, which apply to the planting of trees
38. Explain the lessor's remedies where the lessee misuses the property
39. Explain the lessee's obligation to vacate the property and return it upon termination of the lease
Study Unit 12:The tenants real right
40. Explain what the huur gaat voor koop rule means
41. Explain to what type of leases the huur gaat voor koop rule is applicable
42. Explain how the lessee's real right is established
43. Explain the difference between onerous and gratuitous successors
44. Explain the effect of the lessee's real right
45. Briefly set out the fact of any relevant prescribed cases, the decisions in such cases and the reasons
for such decisions
46. Apply the rules discussed here, and any relevant prescribed cases to practical problems
Study Unit 13: The lessor's tacit hypothec to secure the rent
47. Explain the nature of the lessor's hypothec
48. Explain what goods are subject to the hypothec
49. Explain whose goods are subject to the hypothec
50. Explain what debts are secured by the hypothec
51. Explain the legal effect of the hypothec
52. Explain how the doctrine of quick pursuit operates
, 3
Study Unit 14: Remission of rent
53. Explain what is meant by remission of rent
54. Explain what is meant by Vis maior and casus fortuitus
55. Explain when abandonment of property is possible
56. Explain by what amount the rent can be reduced
Study Unit 15: Compensation for improvements
57. Explain the type of leases to which the placaats apply
58. Explain the position regarding improvements on agricultural leases
59. Explain what is meant by an annexure
60. Explain the position regarding improvements on other leases
61. Explain the lessee's right to remove the annexure
Study Unit 16: Subletting, cession, delegation and assignation
62. Explain what is meant by subletting
63. Explain whether rural and urban premises may be sublet
64. Explain what cession means
Study Unit 17: The termination of a lease
65. Explain how a contract of lease can be terminated by mutual agreement; effluxion of time; notice;
merger; destruction of the property; rescission of the contract; extinction of landlord's title;
insolvency; death and legislation.
Study Unit 18: The Rental Housing Act 50 of 1999
66. Explain the application of the Rental Housing Act
67. Explain and distinguish the general and statutory provisions
68. Explain what the function and powers of the rental housing tribunal is
69. Explain the function of the rental housing information offices
70. Explain all the offences and penalties created by the Act
STUDY GUIDE 1- Notes
Study Unit 1: Introduction to the contract of lease
The relationship between the general principles of contract and specific contracts
Every specific contract is a contract, which means that all the general principles of the law of contract apply
to it
How and why contracts are assigned to different classes (types)
⇒ It Is the content (terms) of a contract which determines whether it is to be assigned to a specific class
of contracts or whether it is to be regarded as a contract sui generis- a contract which does not fit into
any particular contract
The essentialia of a contract
⇒ The essentialia are not terms that are essential for the validity of the contract, they are terms that are
essential for the classification of a contract as one of a specific type i.e. determine the category into
which a contract falls
⇒ Essentialia of a contract of sale:
1. An undertaking by the one contractant (the seller) to deliver a thing to his or her co-contractant
2. An undertaking by the co-contractant to pay a sum of money in exchange for the thing
⇒ Any specific contract is defined in terms of its essentialia
The naturalia of a contract
⇒ The class to which a particular contract belongs determines its naturalia included in the contract by
operation of law (ex lege)- need not be expressly negotiated by the parties
, LPL401-8 4
⇒ It is necessary to classify a contract as a specific type as this is required to determine the natural terms
of the contract.
⇒ May be excluded by agreement between the parties to a particular contract of that class
⇒ The parties are free to insert as many additional terms as the like- these are called incidental terms
Study Unit 2: Definition and essential elements
3 types of letting and hiring: the hiring of services which are conducted under supervision; the hiring of a
person’s services in order to obtain the results of the labour such as building a house and the letting and
hiring of a thing which can be either movable or immovable
Definition a contract of lease
It is a reciprocal agreement between one party, namely the lessor, and another party, namely the lessee,
where by the lessor binds himself or herself to give to the lessee the temporary use and enjoyment of the
thing, in return for the payment of the rent The requirements for a valid contract
⇒ There are 6 absolute requirements:
1. Consensus or apparent consensus
2. The parties must have contractual capacity
3. Prescribed formalities must be complied with
4. The obligations created by the contract must be possible of performance
5. The contractual agreement must be legal
6. Performance must be determined or determinable
The essential elements of a contract of lease
1. The lessor must delivers and the lessee must receive a thing or property for the temporary use and
enjoyment of this thing or the property
2. There must be a thing or property which is being let
3. An amount of rent must be paid for the use and enjoyment of the leased thing
The parties must agree to deliver and receive a particular thing
⇒ An expression of the general requirement that performance must be possible
⇒ Supervening impossibility: where performance becomes impossible through no fault of the lessor.
Obligations are terminated.
⇒ Prevention of performance: absolute or objective impossibility of performance- where performance is
prevented permanently as regards everyone, and relative or subjective prevention of performance-
where it is only performance by the debtor which is rendered impossible (breach of contract in the form
of prevention of performance
The letting and hiring of the leased thing must be temporary and not in perpetuity
⇒ A lease cannot be forever; only a contract in which the temporary use and enjoyment of the thing is
granted to one of the parties can be a lease.
⇒ The requirement that a contract of lease must be of limited duration is complied with in the following
cases: (i.e. temporary lease)
If the lease is to run for a definite period
If the lease is to run until the occurrence of an event which is sure to occur although the date of
its occurrence may be uncertain
If the lease is at the will or either the lessor or the lessee
If the lease is for an indefinite time with the rent payable periodically (in such a case the lease
may be terminated by either party by reasonable notice given to the other
The thing subject to the lease can either be corporeal or incorporeal or an object still to come into
existence
⇒ In Young v Smith and Another it was argued, on the strength of Graham v Local and Overseas
Investments that there is no doubt that an incorporeal thing can form part of a lease
