Theme 1
Chapter 13
Definition of contract of sale
A reciprocal agreement to buy and sell
Requirements/ Essentialia for the conclusion of a contract of sale
1. Consensus on intention of seller to sell and buyer to buy
2. Object sold
3. Purchase price
Why does the owner not have to be the owner of the thing sold to be able to conclude a valid
contract?
(Res aliena)
Seller’s only duty in terms of contract of sale is to deliver the undisturbed use and enjoyment of all
his rights in object to buyer. If seller knows that he is not the true owner, and buyer acts in good
faith, he is able to hold seller accountable for fraud or fraudulent misrepresentation.
If seller sells a res aliena to buyer, the true owner is entitled to claim back property through rei
vindication.
Res aliena in good faith: true owner can claim back property from buyer.
N.B if buyer sold property to someone else, true owner cannot claim back property
Res aliena in bad faith: True owner can claim property from buyer.
N.B. if owner sold property to someone else true owner can claim back property
Different objects sold
(Res litigiosa)
Rights of first purchaser is enforceable against second purchaser, irrespective of second acting in
good or bad faith.
Future objects
Emptio rei speratae- the sale of an expected thing. That was valid, because the thing was capable of
existing. The price paid will be proportionate to the yield produced
Emptio spei- sale of chance. A promise to give money despite outcome. For example, A says to B that
he will pay B £100 for whatever B catches in his fishing net. In that case, there was a valid,
enforceable sale even though the net came up empty
, Requirements for a valid price determination
1. Agreement on price
2. Price must be certain
3. Price must be in acceptable currency
Contract of sale and exchange
Sale- money is of a higher value
Exchange- goods are of a higher value
How can parties reach agreement as to the purchase price?
Price can be less than value of object, but not completely out of proportion
Court or third party can make a reasonable price determination
Influence of CPA Act 68 of 2008 on purchase price
Must adequately display the price of goods on sale
Supplier is bound by the lowest price, unless there is an obvious error present
Formalities which are required by the Alienation of Land Act 68 of 1981
Has to be written and signed by the parties
Cannot be concluded by electronic means (email, SMS)
Influence of the CPA on formalities
Does not require agreements in general to be in writing, and, if in writing, to be signed.
Not required to be in one of the official languages.
Should be in plain language
Chapter 13
Definition of contract of sale
A reciprocal agreement to buy and sell
Requirements/ Essentialia for the conclusion of a contract of sale
1. Consensus on intention of seller to sell and buyer to buy
2. Object sold
3. Purchase price
Why does the owner not have to be the owner of the thing sold to be able to conclude a valid
contract?
(Res aliena)
Seller’s only duty in terms of contract of sale is to deliver the undisturbed use and enjoyment of all
his rights in object to buyer. If seller knows that he is not the true owner, and buyer acts in good
faith, he is able to hold seller accountable for fraud or fraudulent misrepresentation.
If seller sells a res aliena to buyer, the true owner is entitled to claim back property through rei
vindication.
Res aliena in good faith: true owner can claim back property from buyer.
N.B if buyer sold property to someone else, true owner cannot claim back property
Res aliena in bad faith: True owner can claim property from buyer.
N.B. if owner sold property to someone else true owner can claim back property
Different objects sold
(Res litigiosa)
Rights of first purchaser is enforceable against second purchaser, irrespective of second acting in
good or bad faith.
Future objects
Emptio rei speratae- the sale of an expected thing. That was valid, because the thing was capable of
existing. The price paid will be proportionate to the yield produced
Emptio spei- sale of chance. A promise to give money despite outcome. For example, A says to B that
he will pay B £100 for whatever B catches in his fishing net. In that case, there was a valid,
enforceable sale even though the net came up empty
, Requirements for a valid price determination
1. Agreement on price
2. Price must be certain
3. Price must be in acceptable currency
Contract of sale and exchange
Sale- money is of a higher value
Exchange- goods are of a higher value
How can parties reach agreement as to the purchase price?
Price can be less than value of object, but not completely out of proportion
Court or third party can make a reasonable price determination
Influence of CPA Act 68 of 2008 on purchase price
Must adequately display the price of goods on sale
Supplier is bound by the lowest price, unless there is an obvious error present
Formalities which are required by the Alienation of Land Act 68 of 1981
Has to be written and signed by the parties
Cannot be concluded by electronic means (email, SMS)
Influence of the CPA on formalities
Does not require agreements in general to be in writing, and, if in writing, to be signed.
Not required to be in one of the official languages.
Should be in plain language
