,
,
, Question 1 MEMO
1.1 Vintage Cars retained ownership (dominium) of the car before Kate paid the final
instalment. This is a real right and the most comprehensive proprietary entitlement
under South African law (Study Guide, p. 42). The instalment sale agreement
explicitly stated that ownershipp would remain with Vintage Cars until full payment
which is a classic pactum reservati dominii (reservation of ownership clause).
Ownership does not pass upon delivery or possession but onlyonce the buyer has
fulfilled all paymentobligations in instalment sale agreements (Study Guide, p. 128).
Although Kate had physical possession and use of the vehicle,she heldit merely as
a holder (detentor) and not as owner. Her right was personal and derivative whereas
VintageCars’ ownership was a real right enforceablele against the wholeworld
(StudyGuide, p. 14). This retention of ownership functions as a security mechanism
- should Kate default or become insolvent, the car would not form part of her estate
and Vintage Cars could reclaim it as true owner (Study Guide, p. 134).
This principle is consistent with the inviolability of ownership whichholds that “a
person cannot lose ownership without consent” and “no one may transfer more rights
than they have” (nemoplus iuris) (Study Guide, p. 43). Vintage Cars’ rightwas
therefore not merely contractual buta full real right of ownership until the final
payment (Study Guide p. 42) and protected under the remedies discussed in Study
Unit 6.
1.2. Kate holds a personal rightt (creditor’sright/claim) against Tom, specifically the
actio empti, arising from their contract of sale. Although Tom purported to sell the car
asowner, he was not the lawful owner, but Vintage Cars was. When Kate was
evicted by the true owner(via police action),she suffered eviction within the meaning
of the implied warranty against eviction, a standardterm in all sales of corporeal
things (Study Guide, p. 112).
Upon eviction, Kate may claim restitution of the R20 000 purchase price, plus
interest and consequential damages, from Tom. Her claim is personal and it binds
only Tom and cannot be enforcedagainst third parties like Vintage Carsor the police
(StudyGuide, p. 30). Kate’s good faith (she had no reason to suspect Tom wasn’t the
owner) strengthens her position although it is not strictly necessary for the warranty
claim (Study Guide, p. 113).
,
, Question 1 MEMO
1.1 Vintage Cars retained ownership (dominium) of the car before Kate paid the final
instalment. This is a real right and the most comprehensive proprietary entitlement
under South African law (Study Guide, p. 42). The instalment sale agreement
explicitly stated that ownershipp would remain with Vintage Cars until full payment
which is a classic pactum reservati dominii (reservation of ownership clause).
Ownership does not pass upon delivery or possession but onlyonce the buyer has
fulfilled all paymentobligations in instalment sale agreements (Study Guide, p. 128).
Although Kate had physical possession and use of the vehicle,she heldit merely as
a holder (detentor) and not as owner. Her right was personal and derivative whereas
VintageCars’ ownership was a real right enforceablele against the wholeworld
(StudyGuide, p. 14). This retention of ownership functions as a security mechanism
- should Kate default or become insolvent, the car would not form part of her estate
and Vintage Cars could reclaim it as true owner (Study Guide, p. 134).
This principle is consistent with the inviolability of ownership whichholds that “a
person cannot lose ownership without consent” and “no one may transfer more rights
than they have” (nemoplus iuris) (Study Guide, p. 43). Vintage Cars’ rightwas
therefore not merely contractual buta full real right of ownership until the final
payment (Study Guide p. 42) and protected under the remedies discussed in Study
Unit 6.
1.2. Kate holds a personal rightt (creditor’sright/claim) against Tom, specifically the
actio empti, arising from their contract of sale. Although Tom purported to sell the car
asowner, he was not the lawful owner, but Vintage Cars was. When Kate was
evicted by the true owner(via police action),she suffered eviction within the meaning
of the implied warranty against eviction, a standardterm in all sales of corporeal
things (Study Guide, p. 112).
Upon eviction, Kate may claim restitution of the R20 000 purchase price, plus
interest and consequential damages, from Tom. Her claim is personal and it binds
only Tom and cannot be enforcedagainst third parties like Vintage Carsor the police
(StudyGuide, p. 30). Kate’s good faith (she had no reason to suspect Tom wasn’t the
owner) strengthens her position although it is not strictly necessary for the warranty
claim (Study Guide, p. 113).
