LAW OF SALE AND LEASE – 2012

The Law of Sale and Lease is a final year LLB credit. The two subjects divide the course in two,
with Sale being offered in term 1, and Lease in term 2. For the purposes of coherence, each
component of the course is discussed separately below, in order to explain more specifically the
nature of each component. Both parts of the course will be lectured by the same lecturer in 2012.

A SALE

INTRODUCTION

Overview

The purpose of the sale portion of the course is to provide insight into the nature and function of
the law of sale in South Africa. More particularly:

 To provide the students with a thorough understanding of the essential elements

of a contract of sale, and how the sale contract differs from other forms of
contract.
 To provide the students with a thorough understanding of the legal effects of a
contract of sale.
 To ensure that the students are aware of the legal duties imposed upon buyers and
sellers, and the consequences that may flow if these duties are breached.
 To make the students aware of the special requirements that attach to certain
special forms of sale, or sales regulated by statute.
 To assist students in being able to identify and solve authentic legal problems
with regard to sale contracts.
 To familiarise students with legal concepts and terminology commonly
encountered in the law of sale.

Credit Value

5 Credits.

Assumptions of Prior Learning

In order successfully to complete this portion of the course, students need to be able to:

 Be capable of writing and communicating in coherent English.

 Know how and where to access resources such as textbooks, law reports and
statutes in the Law Library.
 Have a working knowledge of the general principles of the law of contract.
 Be capable of independent learning.
 Read, analyse and extract principles from law reports and other source material.
 Understand the system of judicial precedent, and the important role precedent
plays in private law.
 Have a developed understanding of legal problem-solving techniques.
 OUTCOMES

Critical Outcomes

Students will be able to:

(a) identify and solve practical legal problems.

(b) organise and manage themselves and their work load.
(c) collect, analyse and evaluate information from the various sources of law, as well
as information conveyed in the classroom environment.
(d) communicate effectively in class debate and written assignments.
(e) use technology in legal research.
(f) recognise problem-solving contexts involving the law of sale.

Intended Specific Outcomes for Sale

The Sale portion of the course is designed so that students successfully completing this portion
of the course should be able to achieve the following outcomes. The student should be able to:

(a) Understand and explain the essential elements of a valid contract of sale.
(b) Understand and explain some of the key legal consequences of entering into a
contract of sale.
(c) Understand and explain the legal duties that are imposed upon buyers and sellers,
and the consequences that flow if these duties are breached.
(d) Understand and explain the features of certain special types of sale contracts, and
sales regulated by statutes.
(e) Apply the knowledge acquired during the course to solve practical problems with
regard to sale contracts.

TEACHING METHODS

The course will be presented by means of viva voce lectures. There is a relatively thorough
handout for the course, which the students receive on the first day, and which provides the basic
structure of the lectured course. The handout is not comprehensive, though: some topics will be
covered orally in class only, and students will be expected to take their own notes in lectures to
supplement the handout. In lectures, the substantive law (both common law and statute law) will
be discussed, leading precedents from the case law will be analysed, and the views of leading
academic commentators will be explained. Occasionally, students will be expected to explain
case law and consider practical questions in class. Students are expected to assume responsibility
for their learning by reading ahead before each lecture, and consolidating afterwards. Lectures
are compulsory. The normal Faculty regulations concerning lecture attendance and DP
certificates apply. There are no tutorials in this portion of the course.
 COURSE CONTENT

Section 1 – The definition and essentials of the contract

 Definition
 Comparison with other contracts
 Essentials: the thing sold (merx) and the price (pretium)

Section 2 – The legal effect of the contract

 The passing of ownership

 Risk and benefit
 Conditional sales

Section 3 – Seller’s legal duties and buyer’s remedies

 Care of the thing sold

 Making the thing sold available
 Warranty against eviction
 Duty to deliver the merx free from defects
- patent and latent defects and remedies
- exclusion of liability for defects
- aedilitian actions in cases of dicta et promissa

Section 4 – Buyer’s duties and seller’s remedies

 Payment of the purchase price

 Taking delivery of the merx
 Reimbursement of the seller’s necessary expenses
 Remedies

Section 5 – Special sales

 Auctions

Section 6 – Common sales regulated by statute

 The Consumer Protection Act 68 of 2008 (focus topic for 2011).

 RESOURCES

The core reading and study material for this course are the leading judgments on the aspects of
the law of sale to be studied. These cases may be found in the law reports, which may be
accessed in the Law Library, both in paper and electronic form. For a full list of cases, see the
course handout.

As far as textbooks are concerned, although there is no prescribed text, the one book that is
highly recommended is Kerr’s The Law of Sale and Lease (3rd edition, Butterworths, 2004).
Other recommended texts are:

Zulman, RH and Kairinos, G: Norman's Purchase and Sale in South Africa (5th ed,
Butterworths, 2005)

De Wet and Van Wyk: Die Suid-Afrikaanse Kontraktereg en Handelsreg (5th ed, Butterworths,
1992)

Hackwill, G: Mackeurtan's Sale of Goods in South Africa (5th ed, Juta, 1984) (Mackeurtan)

Joubert, W (ed): The Law of South Africa, vol 24, section on Sale by Kerr

Kahn (ed): Contract and Mercantile Law through the Cases, Vol II (Juta, 1985), especially the
chapter by Zeffert "Purchase and Sale" 3-249

Bradfield & Lehmann: Principles of the Law of Sale and Lease (2 ed, Juta, 2010)

Occasionally, students will be referred to pertinent Journal articles on aspects of the course
content. These may also be found in the Library.

Students are strongly advised to utilise these resources in the course of their studies.

STUDENT ASSESSMENT

Specific Outcomes (On completion of Assessment Criteria (What Assessment Tasks (The
this course, the student should be able evidence must the student evidence will be gathered in
to:) provide to show that they are the following way. The
competent? The student must student may be expected
be able to:) to:)
Understand and explain the essential - Define the two essential elements - Write short essays,
elements of a valid contract of sale. of a contract of sale. supported by authority,
- Describe and explain the explaining the requirements
requirements that have to be that have to be met for one of
satisfied for these elements to
the elements to be satisfied.
exist.
- Demonstrate an understanding of - Write case notes on the
the court decisions that have leading precedents discussed
authoritatively determined what and examined during the
the various elements and course.
requirements are.
Understand and explain some of the key - Discuss some of the important - Write short essays,
legal consequences of entering into a consequences of entering into a supported by authority,
contract of sale. contract of sale, and the legal explaining one or another of
problems that can be associated the legal consequences of
with these issues. entering into a sale contract.
- Demonstrate an understanding - Write case notes on the
of the court decisions that have leading precedents discussed
authoritatively determined what and examined during the
the law is with regard to these course.
legal consequences.
Understand and explain the legal duties - Define the various legal - Write short essays,
that are imposed upon buyers and duties. supported by authority,
sellers, and the consequences that flow - Describe and explain how explaining the various legal
if these duties are breached. these duties impact upon buyers duties imposed upon buyers
and sellers respectively. and sellers respectively, and
- Demonstrate an understanding the remedies available where
of the court decisions that have such duties are breached.
authoritatively determined what
these legal duties are.
- Describe and explain the
remedies that may flow if these
duties are breached.
Understand and explain the features of - Discuss the important or - Write short essays,
certain special types of sale contracts, unique features of special sale supported by authority,
and sales regulated by statutes. contracts such as auction sales. explaining the legal features
- Discuss the legal requirements of special forms of sale
that attach to certain common contract or contracts
sales regulated by statutory regulated by statute.
enactments, such as property
sales, sales of moveable
property on credit, and internet
sales.
Apply the knowledge acquired during - Identify the relevant legal - Write judgments or
the course to solve practical problems problem or issue. opinions in which a practical
with regard to sale contracts. - State the relevant law, and problem is analysed and
discuss the relevant legal solved on the basis of the
precedents with regard to that relevant law and precedents.
issue.
- Apply the law to the facts in
order to come to a reasoned
conclusion about the problem,
and the legal remedies that
might flow from the finding.
Assessment Strategy

The final mark for the Sale module is comprised of the following components:

Examination: 30 marks out of a 60 mark examination.

Class work: 15 marks out of a class mark of 30.
These totals will be added to the results in the Lease module and converted into a
percentage (see the comment on the examination below).

Sale Test

There is one test for the Sale module, which is written late in the first term. The test will be out
of 15 marks, and students have 5 minutes reading time, and 40 minutes in which to complete the
test. The test is written in a class period. The test will contain questions equivalent to that which
may be found in the June examination, and will require the students to apply their knowledge to
solve a legal problem. The test is compulsory.

Examination

One two-hour paper will be written in June. The examination will be out of 60 marks, converted
to a final mark out of 70 for calculation purposes. In the Law of Sale, the students will have to
answer 2 15-mark questions out of a choice of 3. The questions will require students both to be
able to explain legal rules and principles in a theoretical sense as well as to apply their
knowledge to solving practical problems in authentic contexts. The examination is compulsory.
An external examiner assesses the quality of both the examination paper and the students’
answers.

EVALUATION

This course is evaluated as part of the global evaluation of LLB courses conducted at the end of
each semester.
B LEASE

INTRODUCTION

Overview

The purpose of the lease portion of the course is to provide insight into the nature and function of
the law of lease in South Africa. More particularly:

 To provide the students with a thorough understanding of the essential elements

of a contract of lease, and how the sale contract differs from other forms of
contract.
 To provide the students with a thorough understanding of the legal effects of a
contract of lease.
 To ensure that the students are aware of the legal duties imposed upon lessors and
lessees, and the consequences that may flow if these duties are breached.
 To make the students aware of the special requirements that attach to certain
special forms of lease, or leases regulated by statute.
 To assist students in being able to identify and solve authentic legal problems
with regard to lease contracts.
 To familiarise students with legal concepts and terminology commonly
encountered in the law of lease.

Credit Value

5 Credits.

Assumptions of Prior Learning

In order successfully to complete this portion of the course, students need to be able to:

 Be capable of writing and communicating in coherent English.

 Know how and where to access resources such as textbooks, law reports and
statutes in the Law Library.
 Have a working knowledge of the general principles of the law of contract.
 Be capable of independent learning.
 Read, analyse and extract principles from law reports and other source material.
 Understand the system of judicial precedent, and the important role precedent
plays in private law.
 Have a developed understanding of legal problem-solving techniques.

OUTCOMES

Critical Outcomes

Students will be able to:

 (a) identify and solve practical legal problems.
(b) organise and manage themselves and their work load.
(c) collect, analyse and evaluate information from the various sources of law, as well as
information conveyed in the classroom environment.
(d) communicate effectively in class debate and written assignments.
(e) use technology in legal research.
(f) recognise problem-solving contexts involving the law of lease.

Intended Specific Outcomes for Lease

The Sale portion of the course is designed so that students successfully completing this portion
of the course should be able to achieve the following outcomes. The student should be able to:

(a) Understand and explain the essential elements of a valid contract of lease.
(b) Understand and explain some of the key legal consequences of entering into a
contract of lease.
(c) Understand and explain the legal duties that are imposed upon lessors and lessees,
and the consequences that flow if these duties are breached.
(d) Understand and explain the features of certain special types of lease contracts, and
leases regulated by statutes.
(e) Apply the knowledge acquired during the course to solve practical problems with
regard to lease contracts.

TEACHING METHODS

Teaching will be in the form of discussion of the course material in the lectures. Students are
provided with a synopsis of the material and a reading list. There is a selection of important cases
that should be consulted. Students are expected to read the cases and the relevant chapters on the
lecture topics to be covered in the lectures. The lecture will be used as a discussion forum for the
material set out in the notes. Lecture attendance is compulsory.

COURSE CONTENT

1 The nature of the contract

The essentials, formalities and the parties

2 Types of leases: Long and short leases and the rule “Huur gaat voor koop”

3 The duration of the contract of letting and hiring

Fixed period lease
Tenancy at will
Periodic lease
Hybrid

4 The legal effect of leases (rights and duties of the parties).

The lessor’s obligation to deliver the property to the lessee
Free of impediments
In a fit condition for the purpose leased
 Remedies for breach
The lessor’s obligation to give unhindered use and enjoyment during the
currency of the lease
Maintenance and repairs
Warranty against eviction by third parties with greater title
Remedies for breach
The so-called warranty against defects and its remedies
The lessor’s obligation to pay rates and taxes

5 The lessee’s duty to pay rent

Cash or kind
Where and how - the danger of using an agent
When
Lessors tacit hypothec
The lessee’s duty to take proper care of the property and remedies
The lessee’s duty to restore the property at the end of the lease and
Remedies

6 The impact of the Constitution and recent legislation such as PIE, ESTA,
the Rental Housing Act, the National Credit Act and the Consumer Protection Act

7 The legal effect on third parties (subletting, assignment and cession)

8 Termination of leases
The effect of termination

9 The lessee’s right to improvement

10 Renewal of a lease.

RESOURCES

The core reading for this course are the textbooks, law reports and specific legislation relating to
this branch of the law which may be accessed in the library. The list of cases and relevant
legislation is reflected in the course outline. On the lease component of the course there is AJ
Kerr The Law of Sale and Lease 3rd ed, Lexis Nexis, Butterworths (2004).

Other texts are:

Bradfield & Lehmann: Principles of the Law of Sale and Lease (2 ed, Juta, 2010).

Kerr & Glover “Lease” in LAWSA Vol 14(2) (2ed, Butterworths, 2008)

WE Cooper Landlord & Tenant (2ed, Juta, 1994).

 STUDENT ASSESSMENT

Specific Outcomes (On completion of Assessment Criteria (What Assessment Tasks (The
this course, the student should be able evidence must the student evidence will be gathered in
to:) provide to show that they are the following way. The
competent? The student must student may be expected
be able to:) to:)
Understand and explain the essential - Define the essential elements of a - Write short essays,
elements of a valid contract of lease. contract of lease. supported by authority,
- Describe and explain the explaining the requirements
requirements that have to be that have to be met for one of
satisfied for these elements to
the elements to be satisfied.
exist.
- Demonstrate an understanding of - Write case notes on the
the court decisions that have leading precedents discussed
authoritatively determined what and examined during the
the various elements and course.
requirements are.
Understand and explain some of the key - Discuss some of the important - Write short essays,
legal consequences of entering into a consequences of entering into a supported by authority,
contract of lease. contract of lease, and the legal explaining one or another of
problems that can be associated the legal consequences of
with these issues. entering into a lease contract.
- Demonstrate an understanding - Write case notes on the
of the court decisions that have leading precedents discussed
authoritatively determined what and examined during the
the law is with regard to these course.
legal consequences.
Understand and explain the legal duties - Define the various legal - Write short essays,
that are imposed upon buyers and duties. supported by authority,
sellers, and the consequences that flow - Describe and explain how explaining the various legal
if these duties are breached. these duties impact upon lessors duties imposed upon lessors
and lessees respectively. and lessees respectively, and
- Demonstrate an understanding the remedies available where
of the court decisions that have such duties are breached.
authoritatively determined what
these legal duties are.
- Describe and explain the
remedies that may flow if these
duties are breached.
Understand and explain the features of - Discuss the important or - Write short essays,
certain special types of lease contracts, unique features of special supported by authority,
and sales regulated by statutes. leases. explaining the legal features
- Discuss the legal requirements of special forms of lease
that attach to certain common contract or leases regulated
forms of lease regulated by by statute.
statutory enactments and
constitutional principles.
Apply the knowledge acquired during - Identify the relevant legal - Write judgments or
the course to solve practical problems problem or issue. opinions in which a practical
with regard to sale contracts. - State the relevant law, and problem is analysed and
discuss the relevant legal solved on the basis of the
precedents with regard to that relevant law and precedents.
issue.
- Apply the law to the facts in
order to come to a reasoned
conclusion about the problem,
and the legal remedies that
might flow from the finding.

Assessment Strategy

The final mark for the Lease module is comprised of the following components:

Examination: 30 marks out of a 60 mark examination.

Class work: 15 marks out of a class mark of 30.
These totals will be added to the results in the Sale module and converted into a
percentage (see the comment on the examination below).

Lease Test

There is one test for the Lease module, which is written late in the second term. The test will be
out of 15 marks, and students have 40 minutes in which to complete the test. The test is written
in a class period. The test will contain questions equivalent to that which may be found in the
June examination, and will require the students to apply their knowledge to solve a legal
problem. The test is compulsory.

Examination

One two-hour paper will be written in June. The examination will be out of 60 marks, converted
to a final mark out of 70 for calculation purposes. In the Law of Lease, the students will have to
answer 2 15-mark questions out of a choice of 3. The questions will require students both to be
able to explain legal rules and principles in a theoretical sense as well as to apply their
knowledge to solving practical problems in authentic contexts. The examination is compulsory.
An external examiner assesses the quality of both the examination paper and the students’
answers.

EVALUATION

This course is evaluated as part of the global evaluation of LLB courses conducted at the end of
each semester.