KTH exam notes.pdf - Chapter 13 The purchase price 13.26 Mountbatten case Payment often consists of both money and other goods The Q is the is it a

KTH exam notes.pdf - Chapter 13 The purchase price 13.26...

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Chapter 13: The purchase price 13.26 Mountbatten case Payment often consists of both money and other goods. The Q is the is it a contract of sale or exchange. The problem is solved as follow in Mountbatten v Mohammed: (a.) True intent of parties must be determined. This intent will determine what kind of contract it is, irrespective of the value of the money or the goods. (b.) If parties intent cannot be determined or is unclear. The value of the money vs. the value of the goods must be determined. Mony = higher value —> sale. Goods = higher value —> exchange. (c.) Money and goods = equal value —> sale (presumption) Chapter 14: Double sales 14.40 Meridian bay vs Mitchell (a.) Neither 1st buyer nor the 2nd buyer has already acquired ownership of the merx bought/sold. The case principle is as follows: 1st in time, is preferred in right (1st in law). Consequently the legal claim of B1 with whom the Seller 1st concluded a deed of sale enjoys preference above the legal claim of B2. B1 can enforce his claim ito the deed of sale against the S and B2/ an interdict. If B2 had been unaware of the 1st deed of sale, B2 has contractual claim on basis of: eviction, mora deb, rendering performance impossible or repudiation against the seller. (b.) If either B1 or B2 has already acquired ownership, the personal right of the buyer who did not become owner is subordinate to the real right of the buyer who did become owner of the merx sold, provided that the other was unaware of the other contract of sale. The prejudiced B without ownership has a contractual claim based on eviction, mora deb, rendering performance impossible or repudiation against the seller, provided he did not know of the other contract of sale. (c.) If the merx is the subj matter of a lawsuit, the res litigiosa doctrine is to the effect that where a 2nd sale occurs pending such a lawsuit, the rights of the 1st purchaser must prevail and are consequently enforceable against the 2nd purchaser, irrespective of whether the 2nd P acted in good or bad faith. A dispute becomes a res litigiosa when
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summons is served on the possesor of the merx and it is immaterial whether the 2nd P took transfer of a res litigiosa with or without knowledge of the pending litigation. Chapter 14.83-85 Janse van Rensburg v Grieve Trust (Warranty against eviction) 14.83: In the JVR case the P made an innocent misrep that the trade in vehicle was a 1993 model not a 1989 model. The seller claimed a reduction in the purchase price ito actio quanti minoris. The court confirmed its duty to balance the rights, duties and interests of B’s and S’s and to bring the common law in line with the spirit and values contained in the BoR and the Cons. Consequently the court held that there should be an extension of the application of the aedillition actions to trade in transactions.
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