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BSCI Test 3
Law U3 & U4
| Term | Definition |
|---|---|
| Res vendita / Merx | Thing sold in contract of sale |
| Essentialia of Contact of Purchase and Sale | 1. Seller must have intention to sell and purchaser has intention to purchase - consensus of nature of contract 2. Consensus on what is to be sold 3. Consensus on monetary performance to be delivered by purchaser |
| Duty of seller | Protect object being sold to deliver object in same condition as agreed upon. If object is damaged due to fault of seller, they will be held liable for damages. |
| Intra commercium | Capable of being sold ex. patent is not capable of being sold |
| Requirements to be intra commercium | Definite or ascertainable & not vague at conclusion of contract. Existing at time of contract o having potential existence |
| Delivery of incorporeals | incorporeal - no physical existence ex debts Transferred by cession |
| Cession | Form of contract where personal rights in intangible things are transferred by means of agreement |
| Who is responsible for accidental damage to merx | Risk passes to buyer when sale is perfecta - when agreement of sale is concluded & before delivery or payment |
| Contractual warranty | Duty of seller to warrant the purchaser against latent defects of the res vedita |
| Duty of purchaser | Payment as agreed upon |
| Remedies when lessor is at fault | Specific performance Rescission - Lex commisoria or letter of demand Claim of damages - Court order Deduction of rent |
| Huur gaat voor koop | Lease takes precedent over sale |
| Interdict | Spoliation order to return of rights is ordeed by court |
| Duties of Lessee | 1. Payment of rent - remedies: mora debitoris; repudiation 2. Proper use of leased property - remedies: interdict 3. Return of property on termination of lease - remedies: court order & interdict |
| Essentialia of insurance contract | - Insurable interest - Risk - Premium - Period of cover |
| Insurable interest | In indemnity insurance the insurable interest must exist at moment loss or damage occurs In non-indemnity insurance the insurable interest must exist at time contract is concluded |
| Duty to disclose | Duty rests on prospective insured Insured must disclose all info that could increase risk Pre-contractual duty Non-compliance = misrepresentation |
| Principal | Insured cannot recover more than actual loss or damages suffered |
| Calculation | Value of thing ensured calculates @ time of damage and place of damages Only intrinsic value must be taken into account - not consequential damages |
| Over insurance / double insurance | Insurable interest is insured for more than actual value |
| Under insurance | Insured for less than actual value |
| Subrogation | Damages to insured interest is caused by third party |
| Duties of lessor | - Delivery of keys to the leased premises - Maintain premises - Provide undisturbed use & enjoyment of property - Compensation to lessee for attachments or improvements |
| Remedies when lessee is at fault | - Repudiation - Claim for damages - Interdict - Tacit hypothec - Court order for specific performance |
| Tacit hypothec | Hypothec: arises by operation of law and not by consequence (consent of debtor not required) To ensure payment of rent, lessor has tacit hypothec over moveable assets brought onto leased premises |
| Real security | - limited right that one person (creditor) has over a thing/things of the other person (debtor) to secure performance of an obligation - priority over unsecured creditors in case of sequestration - by means of assets |
| Personal security | Suretyship - creditor who obtains personal security merely obtains personal right against the surety -by means of contract |
| Suretyship agreement | 3rd party binds himself to creditor by contract for proper performance of debtors debt |
| Essentialia of suretyship | Valid principal obligation (debt) * Contract can only exist is principal debt still exists Nature of secured obligation (why is there debt) Extent to which debt is secured (time/amount) |
| Formalities of suretyship | - Contract is in writing & signed by surety - Identities of parties are attaches (ID copies) - Stamped at SARS of bank within 21 days of signing - Permission needed if married in community of property |
| Pledge | Limited real right that secures debt owed to the creditor Placing a moveable object of the pledgor/debtor in possession of creditor Consensus: use & enjoyment & summary execution Doesn't form part of insolvency estate of pledgee -treat as secured cred |
| Pactum antichresis | Use & enjoyment of pledge |
| Parate executie | Summary execution of pledge After a court order the creditor may sell the pledge |
| Bond vs Notarial bond | Bond: immovable property Notarial bond: moveable property |
| Mortgage | Bond - immovable property Mortgagor remains in possession of mortgaged property Can have more than one mortgage over property with written consent of 1st mortgage giver |
| Liens | Right of retention; usually moveable property Differs from tacit hypothec by PHYSICAL POSSESSION of object |
Created by:
CARA.FAURIE
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