Objects that are the subject of an in rem dispute (res litigiosa) may also be the subject of a valid purchase contract. Such a sale may take place if immovable property that is the subject of ongoing legal proceedings is sold in the meantime. If this property is sold, the buyer is bound by the judgment in the lawsuit. The successful applicant has the right to claim them from the buyer (the new owner) by execution without further proceeding. The seller`s obligations and the buyer`s rights in respect of the actions in matters of aeditcity arise ipso jure, and not from the contract itself. No reference can be made to an implied guarantee against the existence of defects. [144] 23 When is the sale perfecta? Merx Price Agreement identifies all fulfilled conditions precedent A major exception concerns the Voetstoots clause. A Voetstoots clause does not release the seller from any liability for a defective res vendita if the seller has acted fraudulently, since no one can get out of fraudulent contracts. If the sale is a res vendita consisting of several items and one or more of them are defective, the exemption from quanti minoris exists only for the defective items. However, if the sale is indivisible, the buyer is only entitled to compensation if an evaluation of all items, both defective and healthy, clearly shows that he has received less than he has contractually agreed. In general, the essential elements of a sales contract are no different from the essential elements of another contract. There must be contractual capacity and consensus, the agreement must be legal (not contrary to public order), enforcement must be possible and all legally required formalities must be respected. However, the purchase contract contains a number of additional substantive requirements (called essentialia), which are equivalent to the general contractual structure.

Of course, as with any treaty, the need for consensus or agreement is the most important general element. Actio quanti minoris may also be requested in a second group of circumstances. If the deficiency is such that it is not essential enough to trigger a redhibitor action, it can still trigger an actio quanti minoris. A buyer can therefore demand a reduction in the purchase price if he (despite the defect) would still have concluded the contract, but at a lower price. A buyer may take legal action for Redhibitory and, on a subsidy basis, claim damages quanti minoris. In most ordinary and daily commercial transactions, the conclusion of a purchase contract and the transfer of ownership by delivery of the res take place instantly. However, for some types of sales, there is a delay between the time of conclusion of the purchase contract and the time of transfer of ownership and ownership. The question to be answered in these circumstances is: who benefits from the benefits of RES and who is likely to harm them during this period? The buyer is obliged to remove the item if it is provided by the seller or to receive it when it is brought to him. [181] The classic statement of this duty is that of Pomponius: ”If a man buys the stone on an estate and refuses to remove it, an action of sale may be brought to have the removal carried out.” [182] It will first be necessary to take into account the obligations of a seller who has not yet delivered the goods sold. It is his duty to take care of it, as a paterfamilias bonus would do, and if he does not fulfill this obligation, the buyer would be entitled to claim damages, or, if, but only if the seller`s omission is that the item sold differs significantly from the item offered, to terminate the contract and refuse to accept delivery. [72] The buyer is required to pay the price at the place specified in the contract.

If no location has been specified, the buyer must ensure that payment is received by the creditor no later than the due date. Failure to supply the goods in a sales contract constitutes a serious breach. It authorizes the buyer to terminate the contract. In Landau v City Auction Mart,[109] Watermeyer said YES: If the consideration is entirely in goods and not money, the contract is an exchange agreement, not a sale. If it consists partly of money and partly of goods, the contract may be a sale or an exchange, depending on the intention of the parties. In general, however, the contract is a sale. Kerr defines utility as ”any natural or civilian fruit and other similar benefits, gains, or gains.” [62] The general rule is that the benefit of the res vendita follows the risk. All the benefits pass to the buyer as soon as the sale is perfecta.

However, this does not include random winnings. [63] The benefit must be directly related to and actually generated by the property sold. If the profits were purely random and would not have been taken into account at the time of the closing of the sale, the buyer cannot claim such an advantage. [64] Unless otherwise agreed, both parties are required to provide the service as soon as the contract has been concluded. The buyer must therefore make the payment if the seller is obliged to provide the item sold. In Breytenbach v Van Wyk,[179] Wessels said YES: ”In the case of a sale against payment in cash, the item must be delivered pari passu with payment of the purchase price.” [180] 21 Obligations of the Buyer to pay the purchase price General rule – Payment by legal tender on delivery Pay the necessary costs of the Seller Maintenance costs between sale and delivery, transfer costs Acceptance of the delivery of the Merx According to our law […] a contract for the simultaneous delivery of a certain number of items of a certain prima facie quality is an entire contract, and the seller does not have the right to change the nature of the contract. ASi in emptione modus dictus est et non-praestatur ex emptio actus est. [90] It is based on the principle that a creditor cannot be compelled to accept partial payment or partial performance of a contract.

Although the object of the contract is physically divisible, the obligation from a legal point of view consists in the payment of the full amount due or a number to be delivered [….] The buyer has no obligation to separate the wrong part of a shipment from that of the good. As soon as he verifies that an unreasonable number of bags is defective from a large number of bags, he is prima facie entitled to refuse the lot. [91] Wells` sale of an inheritance expected by Hutton to Samuels while Hutton is still alive is stigmatized because it is unenforceable, although it is not void from the outset. However, once Hutton dies, an inheritance can be sold. The purchase contract, as it is known today in South Africa, has its origin in the Roman consensual treaty of emptio venditio. In D 18.1 (the title dedicated to the contract of emptio venditio), there is no complete definition of the special contract, but some critical characteristics can be extracted from the first fragments of the title: if no time is fixed, the res vendita must be made available immediately (if execution is possible at the time of sale), or within a reasonable period of time (if the process necessarily has to take time). .