On 25 May, David sells and delivers the computer to Ursula for R6 000 cash. Ursula is not aware of the contract between David and Charlie. On 30 May Charlie claims payment from David, who refuses to pay the R5 000. Can Charlie claim the computer from Ursula with the rei vindicatio ? Who is the owner of the computer? Feedback No, Charlie will not be able to claim the computer from Ursula, as she is now the owner thereof. On the facts given, the contract of sale between Charlie and David is clearly a credit sale. Therefore, ownership was transferred to David when delivery took place. David, as the owner of the computer, concluded a cash sale with Ursula who paid cash and simultaneously took delivery of the computer. Therefore ownership was transferred to Ursula. Charlie will only be in a position to enforce his personal right to claim specific performance (the payment to him of the R5 000) from David. (See paragraph 13.3 of the textbook.) 4 The passing of the risk (Textbook, par 13.4) This is one of the important sections of the work relating to contracts of sale. If a question states that a certain merx was accidentally damaged after the conclusion of the contract, but before delivery of the merx , the first thing you should do is to determine who bears the risk of damage to the merx . In order to determine this, you will need to establish whether the contract is perfecta or not. If the contract is perfecta the risk passes from the seller to the purchaser and the purchaser will have to bear the loss. _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ Activity On 15 February Duane buys Nikita's car on condition that it passes a roadworthy test on or before 24 February. If the car passes the test, it will be delivered to Duane on 25 February. They also agree that the purchase price of R200 000 will be paid in cash (i.e. when delivery takes place on 6
25 February). The car passes the roadworthy test on 19 February. On 21 February Nikita phones Duane to inform him that the car was stolen the night before. She insists that despite the theft, Duane still owes her the purchase price. What are the legal consequences in the following instances? 1 It is established that the car was stolen in Nikita's driveway while she was opening her garage door. She had left the key in the ignition and the engine running. 2 The car was stolen out of Nikita's locked garage. Feedback 1 From the facts it should be clear that Nikita acted negligently. As the loss was the result of her negligent action, Duane need not pay the purchase price even though the contract was already perfecta . Duane was entitled to the preservation of the merx . The risk for damage or loss resulting from the seller's intentional or negligent conduct remained with Nikita. (See paragraph 220.127.116.11 of the text- book.) 2 Where the loss did not result from Nikita's intentional or negligent conduct, it is material to establish whether the contract was perfecta when the loss occurred.
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- Spring '16