REVISED SYLLABUS

REPORT 191 (NATED)

MERCANTILE LAW N4

REPUBLIC OF SOUTH AFRICA

CODE NUMBER: 13030094

IMPLEMENTATION DATE: JANUARY 2015

CONTENTS

1. Aims

2. Duration of instruction

3. Evaluation

4. Semester mark

5. Examination

6. Pass requirements

7. General information

8. Learning content

9. Literature reference

10. Detailed syllabus

INSTRUCTIONAL OFFERING: MERCANTILE LAW N4 1. AIMS 1.1 General aims

1.1.1 To promote the basic principles of law and to impart to students how these principles

affect commercial enterprises in their relations with other businesses in day-to-day transactions.

1.1.2 To assist students in thinking and reasoning logically, analytically and critically in accordance with legal terminology and customary legal procedure, and helping them to assess the possible legal implications of situations whenever they occur.

1.1.3 To offer students an insight into the legal environment within which the business enterprise functions, in order to enable them to make informed decisions without any harmful legal and costly implications.

1.1.4 To make students aware of the importance and value of the role the law plays in the world of business and the value of conforming to a certain code of conduct, with the emphasis on the promotion of character-formation and self-confidence in their business interactions, as well as discipline.

1.2 Specific aims

1.2.1 To promote insight into basic legal principles, rules and practices which form the basis for sound business, in order that they can become responsible future business people, citizens, employees/employers and consumers.

1.2.2 To make students familiar with the legal rules with reference to the law of contract in general, specific kinds of contracts, including the contract of sale, leases and the contract of employment, the influence of legislation, with specific reference to the National Credit Act, Consumer Protection Act and the Basic Conditions of Employment Act.

1.2.3 To make students aware of the legal consequences of entering into contracts in general.

2. DURATION OF INSTRUCTIONAL OFFERING Full-time: A minimum of five hours per week for one semester. Part-time: A minimum of three hours per week for a semester.

3. EVALUATION Evaluation takes place on a continuous basis by means of class tests, formal tests, an internal semester test, practice-oriented assignments and an external examination. 3.1 Internal evaluation 3.1.1 Theoretical components In addition to the normal class tests as a regular form of evaluation, formal tests on completion of each module, as well as an internal semester test are conducted. These test marks will be calculated out of a mark of 70 which will contribute to the theoretical component towards the final semester mark. The following allocation is recommended: Class Tests Module Tests Internal examination

20 30 50

The mark out of 100 will be converted to a mark out of 70. 3.1.2 Practical components The practical component can consist out of more than one practical assessment. Examples of possible practical assessments are included in the syllabus, but the lecturer is not restricted to this only and own initiative can be used. The final mark, which can consist of more than one practical assessment, contributes 30 % towards the final semester mark. 3.1.3 Semester marks A semester mark out of 100 is compiled by adding the theoretical mark (out of 70) and practical mark (out of 30). The semester mark contributes 40 % towards the final mark. A semester mark of at least 40 % is required to be admitted to the final examination. The semester mark and the external examination mark will be calculated together in a ratio of 40:60 to determine the final mark. The semester mark that is obtained remains valid for two years following directly upon the year in which the semester mark was originally achieved and used. After this period, the mark is no longer valid and the student has to register for the same subject again to obtain a new semester mark. 3.2.1 Examinations An external theoretical examination is conducted at the end of each semester. The paper is set, marked and moderated externally. 3.2.2 Requirements for passing

In order to pass the instructional offering, the candidate must obtain a final mark of 40% when the semester mark and the examination mark are added together, with a sub-minimum of 40% for the semester and examination mark respectively. 3.2.3 Question paper The question paper consists of two sections: Section A is compulsory and covers all the modules of the instructional offering. The questions can consist of multiple choice questions, true/false questions, comparisons, definitions and identification of legal principles. This section totals 50 marks. Part B consists of four questions, any three of which must be answered. Each question counts 50 marks and can consist of sub-sections. Questions can take the form of application type questions, case studies, direct and indirect longer discussion questions and shorter direct questions. Accent will be placed on testing candidates’ insight, their ability to apply their knowledge and to illustrate their knowledge of the subject. The details of the question paper are as follows: Nature of the paper External

Number of papers

Duration of the paper

1

3 hours

Total marks of paper 200

Total marks: Section A (compulsory section) 50

Total marks: Section B: Elective questions

(3 out of 4 questions must be done)

150

Estimated analysis of questions Percentage allocated

Knowledge

Concepts

Analysis, evaluation

Application

40

20

20

20

3.3 Evaluation of practical work Separate measuring instruments are applied for the evaluation of practical work. Examples of these measuring instruments can be rubrics, check lists and memoranda. 4. GENERAL INFORMATION An interactive, didactic approach should be followed in order to equip students with the general and particular skills for Mercantile Law in practice/ the job sector. Practical examples must therefore be used on a continuous basis when lecturing this subject. 5. WEIGHTED VALUES OF MODULES The modules for Mercantile Law N4 are the following: MODULE TOPIC WEIGHTED

VALUE

TIME ALLOCATION

1 Introduction to the Law 5 1 week

2 The law of contracts 30 7 weeks

3 The contract of sale 20 3 weeks

4 The National Credit Act 15 2 weeks

5 Leases 10 1 week

6 Contract of Employment 20 3 weeks

100

The weighted value per module out of 100 (%) is an indication of the period of time in which the module should be concluded, as well as the estimated weight that is awarded to a module during the setting of the question paper. 6. DETAILED SYLLABUS The detailed syllabus for Mercantile Law N4 is as follows:

MODULE 1: INTRODUCTION TO THE LAW: WEIGHTED VALUE: 5

Content Learning Objectives

1.1 General introductory remarks about the law in

South Africa

• A set of rules

• Uncodified system

• Enforced by the State

• Differs from other rules that cannot be enforced

1.3 Purpose and function of a legal system.

₋ To maintain order ₋ To maintain justice

1.3 Every individual (citizen) is the

bearer of rights and duties/obligations

1.4 The concept of a legal entity

1.1 Briefly discuss what is meant by the term ‘law’ and indicate how it differs from other rules in South

Africa.

1.2.1 Briefly explain the purpose (aim) and function of a legal system in a society.

1.2.2 List the requirements that must be met for the law to be considered just.

Take note of this fact:

Realize the implications thereof (on an individual and

interpersonal level, e.g. mutual respect for life,

property, freedom of choice)

1.3 Distinguish between two kinds of rights, namely a real right versus a personal right. Make use of appropriate examples.

1.4 Briefly explain the differences, as well as the similarities, between a legal entity and a natural person.

1.5 Sources of the South African Law

• The Constitution

• Roman-Dutch Law

• Legislation

• Customary Law

• Court decisions/judicial precedent

• African customary law

1.6 Classification of the South African Law

PUBLIC LAW

• Constitutional Law

• Administrative Law

• International Law

• Criminal Law

PRIVATE LAW

• Law of persons

• Family law

• Law of things

• Law of obligations

• The law of succession

• Mercantile Law

1.7 Judicial system in South Africa

• The Constitutional Court

• Supreme Court of Appeal court

• High Courts

• Magistrates’ court

• Special court (small claims court)

1.5 1.5.1 Name and briefly explain the various sources

of the law.

1.5.2 List the four requirements for custom to be recognized as a source of the law.

1.5.3 Discuss the precedent system. Clearly distinguish between the ratio decidendi and an obiter dicta.

1.6.1 Define the concept National Law.

1.6.2 Define Public and Private Law.

1.6.3 Illustrate each subsection of Public Law with a few examples.

1.6.4 Briefly explain Mercantile Law and the aim, place and task thereof in the public and business sector of South Africa.

1.6.5 Identify the applicable law in short case studies/scenarios.

1.7.1 Name and define the various courts.

1.7.2 Explain the principles that the jurisdiction of courts is restricted according to the category of court, with the Constitutional Court as the highest court.

1.7.3 Draw a diagram to illustrate the hierarchy of courts in South Africa.

POSSIBLE PRACTICAL COMPONENT:

Do research on a recent court case in South Africa

where a precedent has been created. Discuss this

court case by referring to aspects like the following:

- the ratio decidendi

- an obiter dicta

- the consequences for

the legal system of

South Africa.

ANOTHER POSSIBLE PRACTICAL COMPONENT:

Do research on the Small Claims Court and explain

to a student not taking law as a subject how this

court works.

Didactic Guidelines Evaluation

� Examples from practice should be used � Make use of articles in newspapers to

illustrate various sources of the law � Google search

Evaluation may take the following forms:

� Multiple choice questions � True/false questions � Short case studies based on court

cases/newspaper articles � Direct questions � Practical tasks

MODULE 2: THE LAW OF CONTRACT: WEIGHTED VALUE 30

Content Learning Objectives

2.1 Contract

2.2 Requirements for the formation of a

valid contract

2.2.1 Legality of contracts

2.2.2 Legal formalities to comply with:

(a) Oral or conduct (b) Writing (c) Notarial execution (d) Registration

2.2.3 Contractual capacity

2.1 Define the term ‘contract’

2.2 Name and explain in a sentence each

of the seven requirements to which a

contract must conform.

2.2.1.1 Discuss the requirement that any

agreement must be lawful in order to be

valid.

2.2.1.2 Give examples of agreements

which are prohibited by statute versus

those prohibited by the common law

(those against public policy)

2.2.1.3 List examples of contracts that are

contra bones mores.

2.2.2.1 Explain that contracts can normally

be concluded orally or by conduct, except

in special cases where the Law prescribes

that the contract must be confirmed in

writing, drawn up by a notary or by

registration.

2.2.2.2 Describe that in the case of

transfer of fixed property registration at the

deeds office must take place.

2.2.2 3 Name examples of contracts that

fall into the four categories(a – d).

2.2.3.1 Explain the concept of ‘contractual

capacity’.

2.2.3.2 Name examples of parties with full

and limited contractual capacity as well as

those with no contractual capacity.

• Minors

• Married person: Matrimonial systems in South Africa

• Mentally ill persons

• Drunk/intoxicated persons

2.2.3.3 Define the term ‘minor’.

2.2.3.4 Explain in detail the position of the minor in each of the following cases where the minor enters into a contract unassisted: ₋ Unjustified enrichment ₋ Fraudulent misrepresentation

of age

2.2.3.5 Explain in detail the position of the minor in each of the following cases where the minor may enter into a valid contract. ₋ With assistance of a guardian ₋ Married persons under the age

of 18 ₋ Tacit emancipation ₋ Where a contract is ratified ₋ Statutory exceptions

2.2.3.6 Explain special situations where the guardian’s assistance will be insufficient.

2.2.3.7 Explain briefly the consequences on the legal capacity of married persons when getting married

₋ In community of property. ₋ Out of community of

property (with accrual system)

₋ Out of community of property with the accrual system.

2.2.3.7 Explain the contractual position of

the mentally ill.

2.2.3.8 Define ‘drunk/intoxicated persons’.

• Prodigals

• Insolvent persons

• Artificial persons

2.2.4 Serious intention

₋ Reasonable cause (iusta causa)

2.2.5 The parties must communicate their intentions to each

other

(a) Conclusion of a contract by means of offer and acceptance

2.2.3.9 Briefly discuss their capacity to

contract and the consequences.

2.2.3.10 Define a prodigal.

2.2.3.11 State their capacity for entering

into valid contracts.

2.2.3.12 Define an insolvent.

2.2.3.13 Write down the restrictions

placed on their freedom to contract.

2.2.3.14 Describe what is meant by an

artificial person.

2.2.3.15 Distinguish between normal and

‘artificial’ person by means of an example

and indicate to which extent this category

of persons has contractual capacity.

2.2.4.1 Briefly explain the meaning of

iusta causa by means of an example.

2.2.4.2 Briefly discuss whether an option

is a valid contract.

2.2.5.1 List the requirements for a valid

offer.

(b) Requirements for a valid offer

(c) Advertisements and rewards (also supermarkets and auctions)

(d) Termination of an offer

(e) Requirements for a valid acceptance

(f) Offer and acceptance through the post/mail (expedition theory)

(g) Telephonic agreements (fax machines) (information theory)

(h) Implied agreements or agreements inferred from conduct

(i) Offer subject to special conditions

(j) Trade usage

2.2.5.2 Identify from short scenarios

whether it is a valid offer.

2.2.5.3 List the ways in which an offer can

be terminated.

2.2.5.4 Briefly discuss whether an

advertisement is a valid offer.

2.2.5.5 List the requirements for valid

acceptance.

PLEASE NOTE: 2.2.5.1 – 2.2.5.4 CAN

BE ASKED IN THE FORM OF SHORT

CASE STUDIES.

2.2.5.6 Briefly explain the time and the

place where the contract is formed.

2.2.5.7 Explain with the aid of an example an implied (tacit) agreement or an agreement inferred from conduct.

2.2.5.8 Explain with the aid of an example an offer subject to special conditions, e.g. ticket cases and receipts.

2.2.5.9 Briefly describe what is meant by trade usage.

2.2.5.10 Mention the requirements for a usage to be accepted as trade usage.

2.2.6 The agreement must not be vague

₋ Interpretation of written contracts

₋ Rectification of written contracts

₋ Parol evidence rule

2.2.7 The parties must be of the same mind as to the

subject matter (the parties must have reached consensus)

₋ Mistake

₋ Influence on consent

₋ Requirements for a mistake o Must be a mistake of fact o Must be a reasonable mistake o Must be a material mistake o Party setting up the mistake must not be estopped

from doing so

Kinds of mistakes:

2.2.6.1 Briefly discuss the fact that where

the content of contracts is incomplete or uncertain, courts will determine the true meaning on the evidence before it.

2.2.6.2 Explain the FIVE basic rules of interpretation applied by the courts to contracts where there is vagueness.

2.2.6.3 Briefly describe what is meant by the rectification of written contracts.

2.2.6.4 Briefly discuss the ‘parol evidence

rule’.

2.2.7.1 Define the term ‘consensus’.

2.2.7.2 Explain the meaning of the term

‘mistake’.

2.2.7.3 Briefly describe the influence of a

mistake on consent.

2.2.7.4 Briefly describe the requirements for a mistake.

2.2.7.5 Identify in short case studies the

kinds of mistakes.

� Mistake of law (no mistake) � Mistake in expression (no mistake) – concept of caveat

subscriptor � Mistake in motive (no mistake) � Mistake of fact, subdivided into

- error in persona

- error in substantia

- error in corpora

- error in negotio

2.2.8 Performance must be possible

� Legal and physical possibility

� The difference between: ₋ Objective impossibility ₋ Subjective impossibility ₋ Supervening impossibility

2.3 Void agreements

₋ Par delictum rule ₋ Condictio indebiti ₋ Mistake of fact

2.2.7.6 Indicate in short case studies whether the specific kind of mistake will render a contract void or not.

2.2.8.1 Distinguish between legal possibility and physical possibility.

2.2.8.2 Provide examples of legal impossibility.

2.2.8.3 Briefly define what is meant by objective impossibility and the effect of this on the validity of a contract.

2.2.8.4 Briefly define what is meant by subjective impossibility and state the effect of this on the validity of a contract.

2.2.8.5 Define what is meant by supervening impossibility.

2.2.8.6 Indicate the effect of supervening impossibility on contracts.

2.3.1 Define what is meant by a void contract.

2.3.2 State the consequences of a void contract.

2.3.3 Briefly define the par delictum rule.

2.3.4 What is meant by the condictio indebiti?

2.4 Voidable contracts

2.4.1 Misrepresentation

• Definition

• Consequences

• Kinds of misrepresentation

• Remedies

2.4.2 Duress (Force)

2.4.1 Define what is meant by a voidable contract.

2.4.2 State the consequences of a voidable contract.

2.4.3 Give examples of voidable contracts.

2.4.4 Distinguish clearly between void and voidable agreements.

2.4.5 Identify from case studies whether it is a void, voidable or valid contract.

2.4.1.1 Define the term misrepresentation.

2.4.1.2 State the consequences of misrepresentation,

2.4.1.3 Explain the three kinds of misrepresentation.

2.4.1.4 Identify the kind of misrepresentation from given case studies.

2.4.1.5 Indicate the remedies for the following kinds of misrepresentation: ₋ Fraudulent ₋ Innocent ₋ Negligent

2.4.2.1 Explain the term ‘force’ in connection with contracts.

2.4.2.2 State the consequences of a contract that had been entered into under duress.

2.4.3 Undue influence

2.5 The terms of the contract

₋ Material terms ₋ Non-material terms ₋ Essentialia ₋ Naturalia ₋ Incidentalia

₋ Conditions

₋ Types of conditions o Suspensive o Resolutive

2.4.3.1 Explain the term ‘undue influence’ as it occurs with contracts.

2.4.3.2 State the consequences of a

contract that had been entered into under

duress.

POSSIBLE PRACTICAL COMPONENT

A list of at least twenty short case studies

based on court cases is given to students.

The student has to indicate in each case

whether the contract will be valid, void or

voidable and has to motivate his/her

answer by indicating the applicable legal

principle.

2.5.1 Define the meaning of material and non-material terms in an agreement.

2.5.2 Briefly distinguish between the essentialia, naturalia and incidentalia of a contract.

2.5.3 Distinguish clearly from the contents of a contract which terms are material and not material (non-essential).

2.5.4 Describe the meaning of conditions by referring to the effect of this on a contract.

2.5.5 Briefly define what is meant by a suspensive condition and state the effect of this on a contract.

₋ Fictitious fulfilment of conditions

₋ Warranties

₋ Representations ₋ Difference between warranties and representations

2.6 Parties to an agreement

2.5.6 Briefly define what is meant by a resolutive condition and state the effect of this on a contract.

2.5.7 Briefly explain the meaning and effect of fictitious fulfilment of contracts.

2.5.8 Describe the meaning of this term as included in contracts from time to time.

2.5.9 Describe the difference in meaning

between express and implied warranties.

2.5.10 Discuss in broad terms the effect of a warranty in a contract.

2.5.11 Describe the meaning of representations and indicate how these differ from

warranties.

2.6.1 Describe the meaning of and

practical implications of the following

persons and aspects relating to parties to

a contract:

₋ Co-debtors ₋ Third parties ₋ Contracts for the benefit of a

third party (stipulatio alteri) ₋ Assignment ₋ Cession ₋ Delegation

2.7 Breach of contract

FORMS

• Mora debitoris

• Mora creditors

• Repudiation

• Positive malperformance (defective performance)

2.7.1 Describe the term ‘breach of contract’.

2.7.2 Describe the term ‘mora debitoris’. Make use of an example.

2.7.3 Discuss the application of mora debitoris together with the requirements for mora, mora ex re, mora ex persona, and the legal implications thereof.

2.7.4 Discuss the remedies at the disposal of the aggrieved party, taking into consideration the application of the rule ’Time is of the essence’.

2.7.5 Describe the term ‘mora creditoris’ and explain it by means of an example.

2.7.6 Discuss the validity of mora creditoris together with its requirements for mora and the legal implications thereof.

2.7.8 Discuss the remedies for mora creditoris.

2.7.9 Describe the term repudiation.

2.7.10 Explain the remedies available to the aggrieved party in the case of repudiation.

2.7.11 Briefly describe the two forms of positive malperformance that exist, namely faulty performance and the debtor doing something which may not be done according to the agreement.

2.7.12 Explain prevention of performance

• Making performance impossible (Prevention of performance) by both the debtor and

creditor

REMEDIES FOR BREACH OF CONTRACT

• Exceptio non adempleti contractus

• Specific performance (in forma specifica)

• Cancellation (rescission)

• Damages

• Penalty stipulations (clauses)

• Interdict - mandatory

- prohibitive

by both the debtor and the creditor.

2.7.13 Describe the term exception non adempleti contractus.

2.7.14 Briefly define what is meant by specific performance.

2.7.15 List the circumstances where the court will not be willing/eager to grant specific performance as remedy

2.7.16 List the circumstances under which an aggrieved party will have the right to cancel a contract.

2.7.17 Briefly describe the meaning and application of the term ‘damages’ with consideration of the mitigation rule and methods of quantifying damages.

2.7.18 List four guidelines used by courts to arrive at an appropriate sum of money awarded as damages to the aggrieved party.

2.7.19 Describe the term penalties and write a short note on the effects of this clause should breach of contract occur.

2.7.20 Distinguish between a mandatory

2.8 Termination of contracts

₋ By agreement (release, novation and compromise) ₋ Operation of law (merger, set-off, prescription and

insolvency) ₋ Supervening impossibility ₋ Death

and a prohibitive interdict as a remedy available to the aggrieved party.

2.8 Discuss the various ways in which a

contract can be terminated.

POSSIBLE PRACTICAL COMPONENT

Short case studies on the forms of breach

of contract are given to the students. The

students must in each case identify the

form of breach and state the applicable

remedy at the disposal of the aggrieved

party.

Didactic Guidelines Evaluation

Examples of court cases as dealt with in our courts must

be explained to students to enable them to relate to the

various legal concepts.

Useful court cases:

� Is an advertisement a valid offer?: Bloom versus American Swiss

� The mistake must be material: Maritz versus Pratley � Tacit emancipation: Grand prix Motors WP (Pty) Ltd v

Swart 1976

Evaluation may take the following

forms:

� Multiple choice questions � True/false questions � Short case studies based on court

cases/newspaper articles � Direct questions � Practical tasks

� Acceptance must be clear: Van Jaarsveld versus Ackermann 1975

� Caveat subscriptor: Dlovo v Brian Porter Motors Ltd t/a Port Motors Newlands 1994

� Restraint of trade: Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984

� Specific performance: York Timbers Ltd v Minister of Water Affairs and Forestry and Another 2003

Actual cases (from newspapers) and simulated ones

(from daily occurrences) can be used to give the

theory a practical basis for its application

� Internet search

MODULE 3: CONTRACT OF SALE: WEIGHTED VALUE: 20

Content Learning Objectives

3.1 Contract of purchase and sale

3.2 Essentials/requirements for a contract of purchase and

sale

• Specific requirements: � Price � Article � Agreement to purchase and sell � Delivery

• Intention/agreement

• Delivery

• The thing sold/subject matter (article/merx)

• Purchase price (pretium)

3.3.1 Define the term ‘contract of

purchase and sale’.

3.2.1 Name and explain the general

requirements (essentialia) with which

contracts must conform.

3.2.2 Describe the specific requirements

(essentialia) for contracts of purchase

and sale.

3.2.3 Describe consensus with regard to

contracts of sale.

3.2.4 Briefly discuss why delivery is

necessary to effect a real right in the

thing bought.

3.2.5 Explain that there must be a thing or an object in respect of which a contract can be concluded.

3.2.6 Explain with a few examples that certain things cannot be sold.

3.2.7 Briefly discuss the sale of a future thing and distinguish between a spes as well as where things still have to be manufactured or the sale of things belonging to someone else.

3.2.8 Explain that the purchase price is payable in money;

the price is fixed and a serious

intention exists to buy and sell at

the fixed price.

Explain that under the common law no

formalities are

required but that exceptions are made

by legislation in certain cases.

3.3.1 Name the basic formalities for registration of fixed property.

3.4.1 List the requirements that must be fulfilled for ownership to pass to the buyer.

3.4.2 Explain the principles of how ownership takes place with regard to a cash and a credit sale.

3.4.3 Distinguish between actual (real) delivery and constructive (fictitious) delivery as two main groups of delivery.

3.4.4 Briefly explain the methods of delivery of immovable and movable property with practical examples.

3.4.5 Identify in case studies the various forms of delivery.

3.3 Risk in contracts of purchase and sale ₋ Meaning of accidental loss ₋ Prerequisite for passing of risk: contract must be

perfecta

3.4 Duties/obligations of the seller

• Duty to take care of the thing sold until delivery takes place

• Duty to deliver the thing sold

• Implied warranty against eviction (guarantees free and undisturbed possession/vacua possession)

• Implied warranty against latent defects

3.5 Duties/obligations of the buyer

• Payment of the purchase price

• Payment of the seller’s necessary expenses in caring for the article before delivery takes place

• Acceptance of delivery

• Payment of transfer duty (immovable property)

3.6 Warranties

• Express warranties

• Implied warranties

(a) Latent defects (b) Extent of warranty against latent defects and liability

3.3. Describe the meaning of risk and

the principles surrounding risk in

contracts of sale.

3.4. Discuss the basic duties of the

seller and explain the legal

consequences of failing to perform these

duties.

3.5. Name the basic duties of the buyer

and explain the legal consequences of

failing to perform these duties.

3.6.1 Explain the term ‘warranty’ and

indicate how it differs from a ‘guarantee’.

3.6.2 Define an express warranty.

3.6.3 Explain implied warranties against

for damage caused (c) What the buyer must prove (d) Cases where the seller is not liable

• ‘Voetstoots’ sale

• Legal remedies of the buyer in the case of latent defects

Aedilitian actions/remedies

(a) Actio redhibitoria (b) Actio quanti minoris

(c ) Remedies where the seller is in default

₋ Actio ex empto

• Breach of implied warranty against eviction

3.7 Rights of the seller where the buyer is in default

• Non-payment of the price (mora debitoris)

• Non-acceptance of delivery (mora creditoris)

latent defects with reference to (a – d)

3.6.4 Explain the term ‘voetstoots’ with

appropriate examples.

3.6.5 Name and discuss the legal

remedies for latent defects.

3.6.6 List the circumstances where the

buyer cannot avail himself of the actio

redhibitoria and the action quanti

minoris.

3.6.7 Discuss under which

circumstances the buyer can avail

himself of the action ex empto and what

the buyer can claim with this remedy.

3.6.8 Explain the meaning of the implied

warranty against eviction and mention

three instances where the seller will not

be liable for the eviction of the buyer.

PLEASE NOTE: CASE STUDIES CAN

BE ASKED ON 3.6

3.7 Discuss the remedies at the

disposal of the seller where the buyer is

at default either by non-payment or non-

acceptance of delivery.

3.8 Special sales:

3.8.1 Sales by description and by sample 3.8.2 CIF, FOR, FOB sales 3.8.3 Auction sales ₋ With a reserve price ₋ Without a reserve price

POSSIBLE PRACTICAL

COMPONENT:

� Compile case studies based on court cases to test the following topics:

₋ Latent defects ₋ Eviction ₋ Passing of the risk rule ₋ Forms of delivery

� Visit an estate agency. Obtain an offer to purchase contract. Analyse this document and explain aspects like the following:

₋ The conditions in the contract (if any) and the implications thereof for both the buyer and the seller

₋ Calculation of the purchase price and how payment will be made

₋ The passing of the risk rule ₋ The implications for the buyer if

occupation is taken before transfer take place at the Deeds’ Office

₋ The implications of a ‘voetstoots’ clause, should there be one

₋ When the new buyer will become the owner

₋ The consequences should the seller die or become insolvent BEFORE registration takes place.

THE CONSUMER PROTECTION ACT 68 OF 2008 (NOT

FOR EXAMINATION PURPOSES) – ONLY FOR POSSIBLE

PRACTICAL COMPONENT

ANOTHER POSSIBLE PRACTICAL

COMPONENT

Divide the learners into groups.

Do research on the most important

sections of the Consumer Protection

Act 68 of 2008. Learners give

feedback in the form of a

presentation.

Didactic Guidelines Evaluation

Examples of court cases as dealt with in our courts must

be explained to students to enable them to relate to the

various legal concepts.

Useful court cases:

� Latent defects: Goldblatt versus Sweeney � Actio redhibitoria: SA Oil & Fat versus Hurter � Whether it is a contract of sale: Mountbatten

Investments (Pty) Ltd v Mohamed 1989 � When does ownership pass (credit and cash sales):

Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton & Another 1973

� Requirements to claim for a latent defect: Sarembock v Medical Leasing Services (Pty) Ltd and Another 1991

� Implied warranty against latent defects where the seller is the manufacturer: Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977

Evaluation may take the following

forms:

� Multiple choice questions � True/false questions � Short case studies based on court

cases/newspaper articles � Direct questions � Practical tasks

� Voetstoots clause: Van der Merwe v Culhane � Latent defect: Schwarzer v John Roderick’s Motors

(Pty) Ltd

MODULE 4: THE NATIONAL CREDIT ACT: WEIGHTED VALUE: 15

Content Learning Objectives

4.1 The purpose of the NCA

4.2 Application – all credit

Agreements

4.3 Classification of credit

agreements

₋ Small agreements ₋ Intermediate agreements ₋ Large agreements

4.4 Disclosure of information

by credit provider

4.5 Pre-agreement

₋ Contents ₋ Validity

4.6 The Credit Agreement

4.1.1 List the purposes of the NCA.

4.2.1 Briefly describe what is meant by credit agreements.

4.2.2 List and briefly describe the types of credit transactions covered by the Act.

4.2.3 Describe what is meant by ‘developmental credit’.

4.2.4 List three types of credit not considered as credit agreements.

4.3 List in each case the type of agreements that are included in small, intermediate and large agreements.

4.4 Distinguish clearly which information must be provided by the credit provider in the case of

₋ Small credit agreements ₋ Intermediate/large credit agreements

4.5 List the contents of the pre-agreement.

4.6 List the detail that must be given in the credit

4.7 Unlawful provision in the

credit agreements

₋ The unlawful provisions

₋ The consequences

4.8 Unlawful credit agreements

₋ Unlawful credit agreements

₋ The consequences

agreement. 4.7 4.7.1 List the unlawful provisions that may not form part of

credit agreements. 4.7.2 Briefly discuss how the Court will deal with unlawful

provisions in a credit agreement.

4.8.1 List unlawful credit agreements.

4.8.2 Briefly discuss how the Court will deal with unlawful credit agreements.

4.9 Financial charges

₋ The various financial charges

₋ Various initiation fees for credit agreements

₋ Formulas used to determine interest charged on credit agreements

₋ Other financial charges

4.10 Protection granted to the

consumer (extension of

consumer rights)

4.11 Marketing practices

4.9.1 Briefly describe the various financial charges.

4.9.2 Do basic calculations for the various initiation fees at the hand of given case studies.

4.9.3 Make use of the various formulas to determine the interest charged on credit agreements.

PLEASE NOTE: FORMULAS WILL BE GIVEN –

THE LEARNER MUST ONLY BE ABLE TO DO

THE CALCULATIONS.

4.9.10 List other possible financial charges.

4.10 List the ways in which a consumer is protected by the NCA.

4.11 Briefly discuss the requirements that advertisements must comply with.

₋ No inducement ₋ Basic information provided in

advertisements

4.12 Termination and

Enforcement

₋ By the consumer ₋ By the credit provider

4.13 Mechanisms to redress

over-indebtedness

₋ Voluntary debt re-arrangement ₋ Involuntary debt re-arrangement

4.14 Dispute settlement

institutions under the NCA

4.15 Credit Bureaus

4.12 Briefly discuss when a credit agreement may be terminated by either the consumer or the credit provider.

4.13.1 Briefly discuss the mechanisms put in place to redress over-indebtedness.

4.13.2 Practical completion of documents used for debt counselling.

4.14 List and briefly describe the various institutions for dispute settlement.

4.15 List information that must be treated confidentially by credit bureaus.

POSSIBLE PRACTICAL COMPONENT

Give a scenario where a consumer wants to apply for

credit. The learner has to classify the type of credit

agreement, provide the consumer with the applicable

information that must be disclosed, draw up the credit

agreement and calculate the various financial charges

applicable to the specific scenario. The consumer

struggles to fulfil his/her obligations and requests

voluntary debt rearrangement. Complete the

necessary forms.

Didactic Guidelines

� Make use of practical examples � Complete application forms for credit � Analyse a credit agreement

Evaluation

� Make use of google search, for example in this chapter: www.ncr.gov.za

Evaluation may take the following forms:

� Multiple choice questions

� True/false questions

� Short case studies based on court

cases/newspaper articles

� Direct questions

� Calculations

� Completion of forms

� Practical tasks

MODULE 5: LEASES OF IMMOVABLE PROPERTY: WEIGHTED VALUE: 10

Content Learning Objectives

5.1 Definition and nature of leases

5.2 Essentialia of leases

• Use and enjoyment of a specified property

• Rent

• Temporary use of enjoyment

5.3 Formation of a lease

5.4 Duration of leases

5.5 Relationship between the parties (landlord and tenant) and third parties

• Subletting

• Cession

• Assignment

• Hire goes before sale (‘Huur gaat voor koop’) Clearly distinguish between:

₋ Short term leases ₋ Long term leases (registered) ₋ Long term leases (unregistered) ₋ Inheritance of property ₋ Expropriation of land

5.1 Define a lease.

5.2 Discuss the important requirements for

any lease.

5.3 Write short explanatory notes on how

leases can be formed (orally or in writing) or

specifically (registration)

5.4 Recognise the necessity that leases for

longer than ten years must be registered to

be protected against a third party.

5.5.1 Describe the various relationships between the parties and write down suitable examples.

5.5.2 Define this concept and write short notes on this term. Advise the tenant of his/her rights in this regard.

5.5.3 PLEASE NOTE: HUUR GAAT VOOR

5.6 Duties/obligations of the landlord/lessor

• To deliver use and occupation or enjoyment of the property let

• To maintain the property

• To ensure the tenant undisturbed use

• To compensate the lessee for additions and improvements

5.7 Duties/obligations of the tenant/lessee

• To pay the rent punctually

• To take proper care of the property and to use it for the purpose for which it was rented

• To return the property undamaged when the lease expires

5.8 Legal remedies for non- performance of obligations

5.8.1 For the landlord

₋ The landlord’s tacit hypothec for the rent where the tenant fails to pay rent

₋ Where the tenant misuses the property ₋ Where the tenant fails to return the

property at termination of the lease

• The influence of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act on the right of the landlord to evict a tenant

5.8.2 For the tenant/lessee

₋ Where the landlord fails to deliver the leased property

₋ Where the landlord fails to maintain the property

₋ Where the landlord disturbs the tenant in his/her use/enjoyment

KOOP CAN BE ASKED IN A CASE STUDY

TO TEST WHETHER THE STUDENT

UNDERSTANDS WHEN THE PRINCIPLE

WILL BE APPLICABLE.

5.6 Write short explanatory notes on the

duties of the landlord.

5.7 Write short explanatory notes on the

duties of the tenant.

5.8.1 Discuss the various legal remedies at

the disposal of the landlord for non-

performance by the tenant.

5.8.1.1 Define who is an unlawful occupier. 5.8.1.2 Briefly discuss the procedure to be followed to evict an unlawful occupier (section 4)

5.8.1.3 List the detail that the notice of eviction must contain.

5.8.1.4 List the circumstances under which the court may grant an order for eviction.

5.8.2 Discuss the remedies/rights of the

tenant in each of the cases where the

5.9 Termination of leases

landlord is in breach.

5.9 Write down the various ways in which

leases can be terminated.

POSSIBLE PRACTICAL COMPONENT

Draw up a contract of lease.

Take into account the following:

� The essentialia of the lease � The duties of the tenant � The rights of the landlord

Didactic Guidelines Evaluation

Examples of court cases as dealt with in

our courts must be explained to students

to enable them to relate to the various

legal concepts.

Useful court cases:

� Renewal: Pareto Ltd and others v Mythos Leather Manufacturing (Pty) Ltd

� Rent : Trook t/a/ Trook’s Tea Room v Shaik & another

� Delivery of property: Harlin Properties (Pty) Ltd v Los Angeles Hotel (Pty) Ltd

� Undisturbed use by tenant: Soffiantini v Mould

� Use of property: Lomax v Killarney of Durban (Pty) Ltd Use of property: Oatorian Properties

(Pty) Ltd v Maroun

� Huur gaat voor koop: Stellenbosch

Evaluation may take the following forms:

� Multiple choice questions � True/false questions � Short case studies based on court

cases/newspaper articles � Direct questions � Practical tasks

Divisional Council v Shapiro � Compensation for improvements:

Burrows v McEvoy � Compensation for improvement:

Von Holdt v Bruwer � Eviction: City of Cape Town v

Rudolph and others

Internet search

MODULE 6: CONTRACT OF EMPLOYMENT: WEIGHTED VALUE: 20

Content Learning Objectives

6.1 Definition, nature and essentials of the

contract of service

6.2 Difference between a servant and an

independent contractor

6.3 Formation

6.4 Relationship in common law:

6.4.1 Duties of the Employer

� To pay the remuneration agreed upon � To provide the employee with work � To provide safe and healthy working

conditions � Not to make the employee carry out work

junior his status � Not to contract an employee’s services

6.1 Define a contract of employment.

6.2 Draw a clear distinction between these

two parties by describing each and referring

to aspects like:

� Supervision and control � Equipment used � Entitlement to leave � Liability for wrongful acts � Prescription as to the what, how and

when � Hours of work � Remuneration � Number of employers

6.3 Describe accurately the procedures

required for the formation of such contracts.

6.4.1 Briefly discuss the common law

duties of the employer.

to another employer without the employee’s consent

6.4.2 Duties of the

Employee

� Making personal services available � To perform his or her work faithfully and

diligently � To obey reasonable orders � To act in good faith � To refrain from misconduct

6.5 Relation between the employer and third

parties for the actions of the servant and

independent contractor

6.6 Termination of the contract of service

� Expiry of term of service � Notice of termination � Insolvency of the employer � Death of the employee � By agreement � Summary dismissal � By impossibility of performance � Redundancy of post

6.7 The Basic Conditions of

Employment Act

� To whom the Act is applicable � Ordinary hours of work � Overtime � Meal breaks and rest periods � Sunday work � Night work � Public holidays

6.4.2 Briefly discuss the common law

duties of the employee.

6.5 Discuss with suitable examples and

justification the relationship between

employer and third persons as related to

case studies.

6.6.1 List the ways in which a contract of service can be terminated.

6.6.2 Briefly discuss summary dismissal.

6.7 Briefly discuss the Basic Conditions of this Act as listed. SPECIAL ATTENTION MUST BE

GIVEN TO THIS ACT AS IT IS VERY

RELEVANT FOR PRACTICE.

� Various kinds of leave � Termination of employment

POSSIBLE PRACTICAL COMPONENT

Draw up a contract of employment

taking into account the common law

principles as well as the statutory

determinations of the Basic Conditions

of Employment Act.

Didactic Guidelines

Examples of court cases as dealt with in

our courts must be explained to students

to enable them to relate to the various

legal concepts.

Useful court cases:

� Independent contractor: R v Feun � Employee: FPS Ltd v Trident

Construction (Pty) Ltd � To act in good faith: Anglo American

Farms t/a Boschendal Restaurant v Komjwayo

� Liability for delicts: Langley Fox Building Partnership (Pty) Ltd v De Valence

� Liability for delicts: Feldman (Pty) Ltd v Mall

� Liability for delicts: Minister of Police v Rabie

Internet search

Evaluation

Evaluation may take the following forms:

� Multiple choice questions � True/false questions � Short case studies based on court

cases/newspaper articles � Direct questions � Practical tasks