, Question 1
1.1 The Common-Law Right of the Purchaser to be Protected Against Eviction
In South African law, a contract of sale creates reciprocal obligations between the seller and the
purchaser. One of the seller’s most important obligations under the common law is the duty to
protect the purchaser against eviction. Eviction occurs when a third party, who has a stronger legal
right to the property, lawfully deprives the purchaser of the whole or part of the property sold. The
seller warrants that the purchaser will have undisturbed use and enjoyment of the thing sold, and
that no third party will successfully claim ownership or a limited real right over it (Van der Merwe
et al., 2012).
The seller’s liability for eviction arises automatically by operation of law and does not need to be
expressly included in the contract. If eviction takes place, and the purchaser has not caused it
through their own fault, the purchaser may claim remedies such as cancellation of the contract,
repayment of the purchase price, and damages for any loss suffered (Nagel et al., 2016). However,
before holding the seller liable, the purchaser must notify the seller of the third party’s claim and
allow the seller an opportunity to defend the action. If the purchaser fails to do so, the seller may
escape liability unless the purchaser can prove that eviction was inevitable (Van der Merwe et al.,
2012).
For example, if A sells a motor vehicle to B, and it later emerges that the vehicle was stolen from C,
the true owner, C may reclaim the vehicle from B. If C succeeds in proving ownership and B loses
possession of the vehicle, B has been evicted. In such a case, B may claim repayment of the
purchase price and possibly damages from A, because A failed to protect B against eviction, even if
A was unaware that the vehicle was stolen (Nagel et al., 2016). This illustrates the operation of the
common-law right of the purchaser to be protected against eviction.
1.2 Requirements for the Transfer of Ownership in Movables
Under South African law, ownership of movable property does not pass merely because a contract
of sale has been concluded. Certain legal requirements must be met before ownership can be
validly transferred. The transfer of ownership of movables requires delivery (traditio) coupled with
the intention to transfer and receive ownership (Van der Merwe et al., 2012).
The first requirement is a valid underlying legal cause (iusta causa), such as a valid contract of sale.
Although the conclusion of the contract does not by itself transfer ownership, it provides the legal
basis for the transfer. The second requirement is delivery of the movable property. Delivery may
occur physically (actual delivery), such as handing over a book, or constructively, such as handing
over the keys to a car or transferring control in another legally recognised manner (Nagel et al.,
2016).
The third requirement is the intention of the transferor to transfer ownership and the intention of
the transferee to receive ownership. Both parties must have the necessary legal capacity and must
genuinely intend that ownership passes. If one of the parties lacks this intention, ownership will not
transfer, even if delivery has taken place (Van der Merwe et al., 2012).
1.1 The Common-Law Right of the Purchaser to be Protected Against Eviction
In South African law, a contract of sale creates reciprocal obligations between the seller and the
purchaser. One of the seller’s most important obligations under the common law is the duty to
protect the purchaser against eviction. Eviction occurs when a third party, who has a stronger legal
right to the property, lawfully deprives the purchaser of the whole or part of the property sold. The
seller warrants that the purchaser will have undisturbed use and enjoyment of the thing sold, and
that no third party will successfully claim ownership or a limited real right over it (Van der Merwe
et al., 2012).
The seller’s liability for eviction arises automatically by operation of law and does not need to be
expressly included in the contract. If eviction takes place, and the purchaser has not caused it
through their own fault, the purchaser may claim remedies such as cancellation of the contract,
repayment of the purchase price, and damages for any loss suffered (Nagel et al., 2016). However,
before holding the seller liable, the purchaser must notify the seller of the third party’s claim and
allow the seller an opportunity to defend the action. If the purchaser fails to do so, the seller may
escape liability unless the purchaser can prove that eviction was inevitable (Van der Merwe et al.,
2012).
For example, if A sells a motor vehicle to B, and it later emerges that the vehicle was stolen from C,
the true owner, C may reclaim the vehicle from B. If C succeeds in proving ownership and B loses
possession of the vehicle, B has been evicted. In such a case, B may claim repayment of the
purchase price and possibly damages from A, because A failed to protect B against eviction, even if
A was unaware that the vehicle was stolen (Nagel et al., 2016). This illustrates the operation of the
common-law right of the purchaser to be protected against eviction.
1.2 Requirements for the Transfer of Ownership in Movables
Under South African law, ownership of movable property does not pass merely because a contract
of sale has been concluded. Certain legal requirements must be met before ownership can be
validly transferred. The transfer of ownership of movables requires delivery (traditio) coupled with
the intention to transfer and receive ownership (Van der Merwe et al., 2012).
The first requirement is a valid underlying legal cause (iusta causa), such as a valid contract of sale.
Although the conclusion of the contract does not by itself transfer ownership, it provides the legal
basis for the transfer. The second requirement is delivery of the movable property. Delivery may
occur physically (actual delivery), such as handing over a book, or constructively, such as handing
over the keys to a car or transferring control in another legally recognised manner (Nagel et al.,
2016).
The third requirement is the intention of the transferor to transfer ownership and the intention of
the transferee to receive ownership. Both parties must have the necessary legal capacity and must
genuinely intend that ownership passes. If one of the parties lacks this intention, ownership will not
transfer, even if delivery has taken place (Van der Merwe et al., 2012).
