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Theme 6.docx - Theme 6: Warranty against Eviction: Study...

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Theme 6: Warranty against Eviction:Study objectives: Commercial Law paras 14.41-14.55After completing this study unit, you should be able to know, understand andapply:▪ the definition of eviction in relation to the warranty against eviction; the generalprinciples applicable to the warranty and prescribed case law;Any action by a third party who has better rights in the object sold than the buyer,and who deprives the buyer of the total or partial use, enjoyment and disposal of theobject sold, constitutes eviction. A buyer does not become the owner of the objectsold by the mere conclusion of a valid contract of sale. The seller is also not obligedto transfer ownership to the buyer except where he himself is the owner of the objectsold.The seller is obliged to give the buyer a warranty against eviction. This warrantyforms anaturaleof any contract of sale and is applied by operation of law. Thecontract does not have to contain an express warranty. Therefore, the warrantyagainst eviction is imposedex legeand has nothing to do with theconsensusorabsence thereof between the parties to the contract [Plitt v Imperial Bank Ltd200▪ the warranty against eviction and the different forms in which it can manifest;Different forms of eviction exist, such as:(a) The true owner of the object sold claims his property from the buyer [Mdakane vStandard Bank of South Africa Ltd1999 (1) SA 127 (W)].(b) A third party obtains possession of property and the buyer cannot claim thisproperty from the third party due to a defective title [Par Excellence Colour.(c) In terms of the rule that lease goes before sale (huur gaat voor koop) [see 17.25– 17.32], the buyer is sometimes obliged to allow the lessee to use and enjoy theproperty until the lease expires.(d) The holder of a limited real right (such as the holder of a servitude of right ofway), may prevent the buyer from having the full use and enjoyment of the objectsold [Glaston House (Pty) Ltd v Inag (Pty) Ltd1977 (2) SA 846 (A)].▪ the buyer’s duties when eviction is imminent;Duties of buyer when eviction imminentThe buyer must comply with certain rules as soon as eviction threatens. The buyercould lose his cause of action against the seller if he does not comply with the rules,unless he can prove that the title of the seller was defective and that the third partywould in any case have succeeded with his action for eviction. In this case theburden of proof does not rest with the third party but rests with the buyer, who has toprove that the title of the seller was defective.

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Term
Fall
Professor
S van wyk
Tags
VAN DER WATT, alpha trust

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