N4 Mercantile Law

Download as pdf or txt
Download as pdf or txt
You are on page 1of 40

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 1

Duration of the paper 3 hours

Total marks of paper 200

Total marks: Section A (compulsory section) 50

Total marks: Section B: Elective questions 150

(3 out of 4 questions must be done)

Estimated analysis of questions Percentage allocated

Knowledge 40

Concepts 20

Analysis, evaluation 20

Application 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 TIME ALLOCATION


VALUE

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 1.1 Briefly discuss what is meant by the term ‘law’
South Africa and
indicate how it differs from other rules in South
• A set of rules Africa.
• 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

1.2.1 Briefly explain the purpose (aim) and function


of a legal system in a society.

1.3 Every individual (citizen) is the


1.2.2 List the requirements that must be met for the
bearer of rights and duties/obligations 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


1.4 The concept of a legal entity similarities, between a legal entity and a natural
person.
1.5 Sources of the South African Law 1.5
1.5.1 Name and briefly explain the various sources
of the law.
• The Constitution
• Roman-Dutch Law
• Legislation 1.5.2 List the four requirements for custom to be
• Customary Law recognized as a source of the law.
• Court decisions/judicial precedent
• African customary law
1.5.3 Discuss the precedent system. Clearly
distinguish between the ratio decidendi and
an obiter dicta.

1.6 Classification of the South African 1.6.1 Define the concept National Law.
Law

PUBLIC LAW 1.6.2 Define Public and Private Law.

• Constitutional Law 1.6.3 Illustrate each subsection of Public Law with


• Administrative Law a few examples.
• International Law
• Criminal Law

PRIVATE LAW 1.6.4 Briefly explain Mercantile Law and the aim,
place and task thereof in the public and
• Law of persons business sector of South Africa.
• Family law
• Law of things
1.6.5 Identify the applicable law in short case
• Law of obligations
studies/scenarios.
• The law of succession
• Mercantile Law

1.7 Judicial system in South Africa 1.7.1 Name and define the various courts.

• The Constitutional Court 1.7.2 Explain the principles that the jurisdiction of
• Supreme Court of Appeal court courts is restricted according to the category
• High Courts of court, with the Constitutional Court as the
• Magistrates’ court highest court.
• Special court (small claims 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 Evaluation may take the following forms:
 Make use of articles in newspapers to
illustrate various sources of the law  Multiple choice questions
 Google search  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 2.1 Define the term ‘contract’

2.2 Requirements for the formation of a


2.2 Name and explain in a sentence each
valid contract
of the seven requirements to which a
contract must conform.

2.2.1.1 Discuss the requirement that any


2.2.1 Legality of contracts
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 Legal formalities to comply with:


2.2.2.1 Explain that contracts can normally
be concluded orally or by conduct, except
(a) Oral or conduct in special cases where the Law prescribes
(b) Writing that the contract must be confirmed in
(c) Notarial execution writing, drawn up by a notary or by
(d) Registration
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


2.2.3 Contractual capacity capacity’.

2.2.3.2 Name examples of parties with full


and limited contractual capacity as well as
those with no contractual capacity.
• Minors 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.

• Married person: Matrimonial systems in South Africa


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.

• Mentally ill persons 2.2.3.7 Explain the contractual position of


the mentally ill.

• Drunk/intoxicated persons 2.2.3.8 Define ‘drunk/intoxicated persons’.


2.2.3.9 Briefly discuss their capacity to
contract and the consequences.

2.2.3.10 Define a prodigal.


• Prodigals

2.2.3.11 State their capacity for entering


into valid contracts.

2.2.3.12 Define an insolvent.


• Insolvent persons

2.2.3.13 Write down the restrictions


placed on their freedom to contract.

• Artificial persons
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 Serious intention

2.2.4.1 Briefly explain the meaning of


₋ Reasonable cause (iusta causa) iusta causa by means of an example.

2.2.4.2 Briefly discuss whether an option


2.2.5 The parties must communicate their intentions to each is a valid contract.
other

2.2.5.1 List the requirements for a valid


(a) Conclusion of a contract by means of offer and offer.
acceptance
(b) Requirements for a valid offer 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


(c) Advertisements and rewards (also supermarkets and
advertisement is a valid offer.
auctions)

2.2.5.5 List the requirements for valid


(d) Termination of an offer acceptance.

PLEASE NOTE: 2.2.5.1 – 2.2.5.4 CAN


(e) Requirements for a valid acceptance BE ASKED IN THE FORM OF SHORT
CASE STUDIES.

(f) Offer and acceptance through the post/mail (expedition 2.2.5.6 Briefly explain the time and the
theory) place where the contract is formed.

(g) Telephonic agreements (fax machines) (information


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

(i) Offer subject to special conditions


2.2.5.8 Explain with the aid of an example
an offer subject to special
(j) Trade usage
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.
2.2.6.1 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 The agreement must not be vague 2.2.6.2 Explain the FIVE basic rules of
interpretation applied by the courts
to contracts where there is
vagueness.

₋ Interpretation of written contracts

2.2.6.3 Briefly describe what is meant by


₋ Rectification of written contracts the rectification of written contracts.

₋ Parol evidence rule 2.2.6.4 Briefly discuss the ‘parol evidence


rule’.

2.2.7 The parties must be of the same mind as to the 2.2.7.1 Define the term ‘consensus’.
subject matter (the parties must have reached consensus)

2.2.7.2 Explain the meaning of the term


₋ Mistake ‘mistake’.

₋ Influence on consent
2.2.7.3 Briefly describe the influence of a
mistake on consent.

₋ Requirements for a mistake


o Must be a mistake of fact
2.2.7.4 Briefly describe the requirements
o Must be a reasonable mistake
for a mistake.
o Must be a material mistake
o Party setting up the mistake must not be estopped
from doing so

2.2.7.5 Identify in short case studies the


Kinds of mistakes:
kinds of mistakes.
 Mistake of law (no mistake) 2.2.7.6 Indicate in short case studies
 Mistake in expression (no mistake) – concept of caveat whether the specific kind of
subscriptor mistake will render a contract void
 Mistake in motive (no mistake) or not.
 Mistake of fact, subdivided into
- error in persona
- error in substantia
- error in corpora
- error in negotio

2.2.8.1 Distinguish between legal


2.2.8 Performance must be possible possibility and physical possibility.

2.2.8.2 Provide examples of legal


 Legal and physical possibility
impossibility.

 The difference between:


2.2.8.3 Briefly define what is meant by
₋ Objective impossibility
objective impossibility and the
₋ Subjective impossibility
effect of this on the validity of a
₋ Supervening impossibility
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 Void agreements 2.3.1 Define what is meant by a void


contract.

₋ Par delictum rule 2.3.2 State the consequences of a void


₋ Condictio indebiti contract.
₋ Mistake of fact
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 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 Misrepresentation
2.4.1.2 State the consequences of
misrepresentation,

• Definition 2.4.1.3 Explain the three kinds of


misrepresentation.
• Consequences
2.4.1.4 Identify the kind of
• Kinds of misrepresentation misrepresentation from given case
studies.
• Remedies
2.4.1.5 Indicate the remedies for the
following kinds of
misrepresentation:
₋ Fraudulent
₋ Innocent
₋ Negligent

2.4.2 Duress (Force) 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 2.4.3.1 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


2.5 The terms of the contract
and non-material terms in an
₋ Material terms agreement.
₋ Non-material terms
₋ Essentialia 2.5.2 Briefly distinguish between the
₋ Naturalia essentialia, naturalia and
₋ Incidentalia incidentalia of a contract.

2.5.3 Distinguish clearly from the


contents of a contract which terms
are material and not material (non-
essential).

₋ Conditions 2.5.4 Describe the meaning of conditions


by referring to the effect of this on
a contract.
₋ Types of conditions
o Suspensive
o Resolutive 2.5.5 Briefly define what is meant by a
suspensive condition and state the
effect of this on a contract.
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


₋ Fictitious fulfilment of conditions effect of fictitious fulfilment of
contracts.

2.5.8 Describe the meaning of this term


₋ Warranties 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.

₋ Representations 2.5.11 Describe the meaning of


₋ Difference between warranties and representations representations and
indicate how these differ from
warranties.

2.6 Parties to an agreement 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 2.7.1 Describe the term ‘breach of
contract’.

FORMS 2.7.2 Describe the term ‘mora debitoris’.


Make use of an example.

2.7.3 Discuss the application of mora


• Mora debitoris 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’.

• Mora creditors 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.

• Repudiation
2.7.9 Describe the term repudiation.

2.7.10 Explain the remedies available to


the aggrieved party in the case of
repudiation.

• Positive malperformance
(defective performance) 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 by both the debtor and the creditor.
(Prevention of performance) by both the debtor and
creditor

REMEDIES FOR BREACH OF CONTRACT

• Exceptio non adempleti contractus


2.7.13 Describe the term exception non
adempleti contractus.

• Specific performance (in forma specifica) 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


• Cancellation (rescission) an aggrieved party will have the
right to cancel a contract.

2.7.17 Briefly describe the meaning and


• Damages 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.

• Penalty stipulations (clauses) 2.7.19 Describe the term penalties and


write a short note on the effects of
this clause should breach of
• Interdict contract occur.
- mandatory
- prohibitive
2.7.20 Distinguish between a mandatory
and a prohibitive interdict as a
remedy available to the aggrieved
party.

2.8 Discuss the various ways in which a


2.8 Termination of contracts contract can be terminated.
₋ By agreement (release, novation and compromise)
₋ Operation of law (merger, set-off, prescription and
insolvency)
₋ Supervening impossibility
₋ Death

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 Evaluation may take the following
be explained to students to enable them to relate to the forms:
various legal concepts.
 Multiple choice questions
 True/false questions
 Short case studies based on court
Useful court cases: cases/newspaper articles
 Direct questions
 Practical tasks

 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
 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 3.3.1 Define the term ‘contract of
purchase and sale’.

3.2.1 Name and explain the general


3.2 Essentials/requirements for a contract of purchase and requirements (essentialia) with which
sale contracts must conform.
• Specific requirements:
 Price
 Article 3.2.2 Describe the specific requirements
 Agreement to purchase and sell (essentialia) for contracts of purchase
 Delivery
and sale.

• Intention/agreement
3.2.3 Describe consensus with regard to
• Delivery contracts of sale.

3.2.4 Briefly discuss why delivery is


necessary to effect a real right in the
thing bought.
• The thing sold/subject matter
(article/merx)

3.2.5 Explain that there must be a


thing or an object in respect of
• Purchase price which a contract can be
(pretium) 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 3.3. Describe the meaning of risk and
₋ Meaning of accidental loss the principles surrounding risk in
₋ Prerequisite for passing of risk: contract must be contracts of sale.
perfecta

3.4 Duties/obligations of the seller 3.4. Discuss the basic duties of the
seller and explain the legal
• Duty to take care of the thing sold until delivery
consequences of failing to perform these
takes place
duties.
• Duty to deliver the thing sold

• Implied warranty against eviction (guarantees


free and undisturbed possession/vacua
possession)

• Implied warranty against latent defects


3.5. Name the basic duties of the buyer
3.5 Duties/obligations of the buyer and explain the legal consequences of
failing to perform these duties.

• 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
3.6.1 Explain the term ‘warranty’ and
indicate how it differs from a ‘guarantee’.
• Express warranties

• Implied warranties 3.6.2 Define an express warranty.

(a) Latent defects


(b) Extent of warranty against latent defects and liability 3.6.3 Explain implied warranties against
for damage caused latent defects with reference to (a – d)
(c) What the buyer must prove
(d) Cases where the seller is not liable

3.6.4 Explain the term ‘voetstoots’ with


• ‘Voetstoots’ sale appropriate examples.

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


3.6.5 Name and discuss the legal
Aedilitian actions/remedies remedies for latent defects.

(a) Actio redhibitoria 3.6.6 List the circumstances where the


(b) Actio quanti minoris buyer cannot avail himself of the actio
redhibitoria and the action quanti
minoris.

(c ) Remedies where the seller is in default


3.6.7 Discuss under which
₋ Actio ex empto
circumstances the buyer can avail
himself of the action ex empto and what
the buyer can claim with this remedy.

• Breach of implied warranty against eviction 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 Rights of the seller where the 3.7 Discuss the remedies at the
buyer is in default disposal of the seller where the buyer is
at default either by non-payment or non-
• Non-payment of the price acceptance of delivery.
(mora debitoris)

• Non-acceptance of delivery
(mora creditoris)
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.
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.

THE CONSUMER PROTECTION ACT 68 OF 2008 (NOT


FOR EXAMINATION PURPOSES) – ONLY FOR POSSIBLE
PRACTICAL COMPONENT

Didactic Guidelines Evaluation

Examples of court cases as dealt with in our courts must Evaluation may take the following
be explained to students to enable them to relate to the forms:
various legal concepts.
 Multiple choice questions
 True/false questions
 Short case studies based on court
Useful court cases: cases/newspaper articles
 Direct questions
 Latent defects: Goldblatt versus Sweeney  Practical tasks
 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
 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 4.1.1 List the purposes of the NCA.

4.2.1 Briefly describe what is meant by credit


4.2 Application – all credit agreements.

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 Classification of credit

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

4.4 Disclosure of information

by credit provider 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 Pre-agreement

₋ Contents 4.5 List the contents of the pre-agreement.


₋ Validity

4.6 The Credit Agreement

4.6 List the detail that must be given in the credit


agreement.

4.7
4.7 Unlawful provision in the 4.7.1 List the unlawful provisions that may not form part of
credit agreements.
credit agreements 4.7.2 Briefly discuss how the Court will deal with unlawful
provisions in a credit agreement.
₋ The unlawful provisions

₋ The consequences

4.8.1 List unlawful credit agreements.


4.8 Unlawful credit agreements

₋ Unlawful credit agreements 4.8.2 Briefly discuss how the Court will deal with unlawful
credit agreements.
₋ The consequences

4.9 Financial charges 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.
₋ The various financial charges
4.9.3 Make use of the various formulas to determine the
₋ Various initiation fees for credit interest charged on credit agreements.
agreements
PLEASE NOTE: FORMULAS WILL BE GIVEN –
THE LEARNER MUST ONLY BE ABLE TO DO
THE CALCULATIONS.
₋ Formulas used to determine interest
charged on credit agreements
4.9.10 List other possible financial charges.

₋ Other financial charges

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


4.10 Protection granted to the
NCA.
consumer (extension of

consumer rights)

4.11 Marketing practices 4.11 Briefly discuss the requirements that advertisements
must comply with.
₋ No inducement
₋ Basic information provided in
advertisements

4.12 Termination and


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

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

₋ Voluntary debt re-arrangement 4.13.2 Practical completion of documents used for debt
₋ Involuntary debt re-arrangement counselling.

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

4.15 List information that must be treated confidentially by


credit bureaus.
4.15 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 Evaluation

 Make use of practical examples


 Complete application forms for credit
 Analyse a credit agreement
 Make use of google search, for Evaluation may take the following forms:
example in this chapter:
www.ncr.gov.za  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 5.1 Define a lease.

5.2 Essentialia of leases 5.2 Discuss the important requirements for


any lease.

• Use and enjoyment of a specified


property
• Rent
• Temporary use of enjoyment

5.3 Formation of a lease


5.3 Write short explanatory notes on how
leases can be formed (orally or in writing) or
specifically (registration)

5.4 Duration of leases


5.4 Recognise the necessity that leases for
longer than ten years must be registered to
be protected against a third party.

5.5 Relationship between the parties


(landlord and tenant) and third parties
5.5.1 Describe the various relationships
• Subletting between the parties and write down
• Cession suitable examples.
• Assignment
• Hire goes before sale (‘Huur gaat voor
koop’) 5.5.2 Define this concept and write short
Clearly distinguish between: notes on this term. Advise the
₋ Short term leases tenant of his/her rights in this
₋ Long term leases (registered) regard.
₋ Long term leases (unregistered)
₋ Inheritance of property 5.5.3
₋ Expropriation of land PLEASE NOTE: HUUR GAAT VOOR
5.6 Duties/obligations of the KOOP CAN BE ASKED IN A CASE STUDY
landlord/lessor TO TEST WHETHER THE STUDENT
• To deliver use and occupation or UNDERSTANDS WHEN THE PRINCIPLE
enjoyment of the property let WILL BE APPLICABLE.
• To maintain the property
• To ensure the tenant undisturbed use 5.6 Write short explanatory notes on the
• To compensate the lessee for duties of the landlord.
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 5.7 Write short explanatory notes on the
when the lease expires duties of the tenant.

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 5.8.1 Discuss the various legal remedies at
₋ Where the tenant misuses the property the disposal of the landlord for non-
₋ Where the tenant fails to return the performance by the tenant.
property at termination of the lease
5.8.1.1 Define who is an unlawful occupier.
5.8.1.2 Briefly discuss the procedure to be
• The influence of the Prevention of Illegal followed to evict an unlawful occupier
Eviction from and Unlawful Occupation of (section 4)
Land Act on the right of the landlord to
evict a tenant 5.8.1.3 List the detail that the notice of
eviction must contain.
5.8.2 For the tenant/lessee
5.8.1.4 List the circumstances under which
the court may grant an order for
₋ Where the landlord fails to deliver the eviction.
leased property
₋ Where the landlord fails to maintain
the property
₋ Where the landlord disturbs the tenant
5.8.2 Discuss the remedies/rights of the
in his/her use/enjoyment
tenant in each of the cases where the
landlord is in breach.

5.9 Termination of leases

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 Evaluation may take the following forms:
our courts must be explained to students
to enable them to relate to the various  Multiple choice questions
 True/false questions
legal concepts.
 Short case studies based on court
cases/newspaper articles
 Direct questions
Useful court cases:  Practical tasks

 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
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 6.1 Define a contract of employment.
contract of service

6.2 Draw a clear distinction between these


6.2 Difference between a servant and an two parties by describing each and referring
to aspects like:
independent contractor
 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 Formation 6.3 Describe accurately the procedures


required for the formation of such contracts.

6.4.1 Briefly discuss the common law


6.4 Relationship in common law: duties of the employer.

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
to another employer without the
employee’s consent

6.4.2 Duties of the 6.4.2 Briefly discuss the common law


duties of the employee.
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 Discuss with suitable examples and


6.5 Relation between the employer and third justification the relationship between
parties for the actions of the servant and employer and third persons as related to
independent contractor case studies.

6.6 Termination of the contract of service 6.6.1 List the ways in which a contract of
service can be terminated.
 Expiry of term of service
 Notice of termination 6.6.2 Briefly discuss summary dismissal.
 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 6.7 Briefly discuss the Basic Conditions of
this Act as listed.
Employment Act SPECIAL ATTENTION MUST BE
GIVEN TO THIS ACT AS IT IS VERY
 To whom the Act is applicable
 Ordinary hours of work RELEVANT FOR PRACTICE.
 Overtime
 Meal breaks and rest periods
 Sunday work
 Night work
 Public holidays
 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 Evaluation

Examples of court cases as dealt with in Evaluation may take the following forms:
our courts must be explained to students
to enable them to relate to the various  Multiple choice questions
 True/false questions
legal concepts.
 Short case studies based on court
cases/newspaper articles
 Direct questions
Useful court cases:  Practical tasks

 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

You might also like