breaks down. The emergency services tow the car to the nearest garage and there it is established that one of the pistons (pistons are very important parts of the car’s
6 SECTION C: SPECIFIC CONTRACTS engine) is broken. It is also discovered that this piston must have been broken before, because it has been welded. What could you do now? What you should do, is to determine whether the car is now less useful to you, or whether it is completely useless. If you decide that the car is less useful, but worth keeping, you may institute action against the seller by means of the actio quanti minoris. With this action you retain possession, but claim a reduction in the purchase price which corresponds to the reduced use. (Study paragraph 188.8.131.52.2 of the textbook.) If, however, the car is completely useless, you would institute action against the seller by making use of the actio redhibitoria. With this action you cancel the contract and claim back the purchase price . (Study paragraph 184.108.40.206.1 of the textbook.) Irrespective of which action you institute, you will have to prove that: (a) the defect was material (b) the defect was present when the contract was concluded (c) the defect was latent (d) the purchaser was unaware of the defect at the time of conclusion of the contract The above-mentioned aedilitian actions can also be applied in circumstances other than the breach of the implied warranty against latent defects. It is important to take note that the aedilitian actions are aimed at restitution or restoration and thus cannot be used to claim damages. (Study paragraph 220.127.116.11.3 of the textbook.) If the above contract was concluded on an “as is” ( voetstoots ) basis, the purchaser will have no recourse against the seller. This is so because the warranty against latent defects may be excluded by the parties. There is, however, an exception to this “as is” clause; if it can be proved that Thomas had been aware of the defect and that he intentionally concealed it. In such an instance, the purchaser can make use of the actio redhibitoria or the actio quanti minoris. In addition, the purchaser will most probably succeed in proving intentional misrepresentation, entitling the purchaser to claim damages with the actio empti . (Study paragraph 18.104.22.168.4 of the textbook.) 2.1.5 The actio empti The actio empti is another powerful remedy which the purchaser can use to enforce his or her rights against the seller and to claim damages. The purchaser may rely on the actio empti in the following instances: (a) defective performance (b) misrepresentation (c) manufacturer’s liability (d) breach of the warranty against eviction (Study paragraph 22.214.171.124 of the textbook.)
CLA1502/1 7 STUDY UNIT 1: Contract of sale ACTIVITY 2 William sells a Yamaha motorboat to Kelvin for R250 000. William assures Kelvin that the motorboat has an excellent service record and low mileage. A month later, the motorboat has a fuel blockage in one of its engines due to a sub-standard filter. Kelvin is unhappy about the repair costs of the fuel blockage and wants to claim the repair costs from William.
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