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CLH June Exam 2015 Model Answer and Marker s Notes
Systems and Context of South African Law (PVL1004/7F)
University of Cape Town
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SysConPreview text
UNIVERSITY OF CAPE TOWN
DEPARTMENT OF PRIVATE LAW
CLASS TEST: JUNE 2015
RDL 1004H / 1007H : COMPARATIVE LEGAL HISTORY
READ ALL INSTRUCTIONS CAREFULLY
INSTRUCTIONS: Answer all questions.
TIME: 2 HOURS PLUS 15 MINUTES READING TIME
NOTE : THE READING TIME MAY BE USED ONLY TO
MAKE PLANNING NOTES IN THE MARGIN OR THE LEFT-
HAND PAGE IN YOUR ANSWER BOOK
MARKS : 100 (all questions are weighted equally)
NOTE : ANSWER ALL THREE QUESTIONS
QUESTION ONE
Martin is cycling quickly to work to continue his writing on a person called Voet. Daydreaming, he fails to notice that Sarah’s dog “Minnie”, which is off the lead, is relieving itself in the middle of the busy cycle lane. Martin hits the dog and is projected, with the dog, into the undergrowth. Martin swears at Sarah “You cow! Do you not know how important I am? You are required to keep your dog on the leash when on the cycle path!” Martin has broken his arm and is unable to complete his manuscript which has to be delivered to the publisher next week. Sarah is so upset that she becomes highly distressed. Anton, a passer-by, sees that Minnie requires urgent attention and takes her to the near-by vet. Minnie dies on the operating table and Anton is charged ZAR 5000. Sarah has just bought a new house in Claremont. Transfer has been completed and she is moving in today. Sarah arrives to find out that her neighbour, Paulo, had built a dangerously large bonfire for his birthday party the night before. At some point during the night Paulo’s friend Marco decided to ‘get the party started’ by throwing a bottle of paraffin onto the bonfire. The bonfire then roared up and spread out of control and burnt down Sarah’s new home.
Advise the parties drawing, where appropriate, the distinction between claims in rem and claims in personam Also identify the source of the obligations: whether, for example, in contract, delict or unjustified enrichment, and the consequences.
MODEL ANSWER
Martin has broken his arm
Martin has suffered an injury to his person which will result in an economic loss in the form of medical bills and loss of income. Sarah was negligent in letting her dog Minnie off the leash. However, it is difficult to describe Sarah as the direct cause of Martin’s injuries which resulted from a collision with Minnie. Martin would therefore not have a claim in terms of the lex Aquilia against Sarah. Further, Martin was also negligent, he was not paying attention while cycling, and his contributory negligence would provide a complete defence to Sarah.
Martin has most likely entered into a contract of hire with his publisher and his failure to deliver his manuscript on time would constitute a breach of contract and could give rise to a claim in personam against him for full consequential loss.
Martin swears at Sarah and she becomes distressed
Martin has infringed Sarah’s dignity by subjecting her to vulgar abuse, calling her a ‘cow’. He has made this statement with the wrongful intention to insult her and is therefore liable in terms of the actio iniuriarum. Sarah has a claim in personam for non-patrimonial damages.
Sarah’s dog, Minnie, has died
Sarah’s dog, which is her property, has been destroyed. Martin was cycling negligently and was the direct cause of Sarah’s loss. However, Sarah’s negligence contributed to the death of Minnie and this would provide a complete defence to the action under the lex Aquilia. Sarah would not be able to successfully claim from Martin for her loss.
Anton is charged ZAR 5000 by the vet for Sarah’s dog
He Anton interfered in Sarah’s affairs for Sarah’s benefit, it was unauthorised, Sarah would appear to have been unaware or at least incapable (either is sufficient) of the management, Anton probably intended to recover his expenses, and the intervention was reasonable. Negotiorum gestio allows one to recover one’s reasonable costs, but not compensation for labour, even if the purpose for which the intervention was taken failed. Anton is entitled to recover his expenses, the R5000 he is obliged to pay the vet in terms of the contract of hire, from Sarah as the negotiorum gestor.
Sarah’s house burnt down
Paulo, by building a dangerously large bonfire, and Marco, by throwing paraffin onto the fire, have both behaved negligently. It is however clear that Paulo was not the direct cause of the fire getting out of control and burning down Sarah’s house because Marco’s actions represent new intervening actions (novus actus interveniens) and Paulo cannot be held liable for the destruction of Sarah’s house. Marco is the direct cause of the destruction of Sarah’s property and she will have a claim, in personam, in terms of the lex Aquilia for her consequential losses. MARKER’S NOTES
QUESTION TWO
Francois sells two neighbouring pieces of land to Faiza in the Northern Cape. One piece is on the mountain slopes and has a beautiful view out across the lower piece which has trees growing on it. Faiza engages Mohamed to develop the land. Mohamed builds two houses, one on each piece of land with materials he supplies. He also develops a market garden on the piece of land on the mountain slopes that he plants with orange trees and tomatoes. The tomatoes and oranges are sold by Faiza to Helen. The tomatoes ripen quickly and are picked and delivered. The oranges are still ripening on the trees and will only be picked later. Faiza subsequently decides to sell the lower piece of land with the trees to Piet and instructs her lawyers to restrict the height of any future building on it. When Piet is moving into the house, the wooden floors collapse under the weight of his bed. This is because Mohamed installed them incorrectly. In due course Thabo claims that the piece of land on the mountain slope belongs to him and that his son, Francois, was only the owner of the lower piece and had no authority to sell the piece of land on the mountain slopes.
Advise the parties drawing, where appropriate, the distinction between claims in rem and claims in personam. Also identify the source of the obligations, whether, for example, in contract, delict or unjustified enrichment, and the consequences.
MODEL ANSWER
The ownership and sale of the land
Francois and Faiza enter into valid contracts of sale in respect of both the land on the mountain slopes and the lower piece of land with trees growing on it. However, assuming Thabo’s claim is correct, because Francois is not the owner of the piece of land on the mountain slope Francois cannot transfer ownership of the land on the mountain slopes to Faiza because of the nemo plus rule, you cannot transfer a better right in the land than you hold. Faiza does become the owner of the lower land.
Faiza, believing that she is the owner, takes possession of the land and becomes the good faith possessor.
Thabo can vindicate the land on the mountain slopes from Faiza using the rei vindication, a claim in rem. When Thabo vindicates the land Faiza will have a claim against Francois for breach of contract for failing to guarantee her vacant possession of the land. Her claim will be a claim in personam for her full consequential loss.
Faiza, as good faith possessor will have a partial defence to Thabo’s vindicatory claim, the exceptio doli, a claim for her outlay costs in improving the land, the house and market garden (discussed below). Alternatively Faiza could raise an enrichment claim for the improvement to Thabo’s land (the hose and market garden), in personam, arising from her interference with Thabo’s property. [ Note: Either description is entirely correct ]
The house and market garden built on the land on the mountain slope
Faiza and Mohamed enter into a contract of hire. Although Mohamed provides his own materials the transfer of ownership occurs by accession rather than delivery and
the contract is therefore hire and not sale. This is an exception to the rule that if someone provides their own materials it is a sale.
The house and market garden are both inseparably attached to the land. Because the land is always the principal thing (inaedificatio solo cedit) the house and market garden are accessories which accede to the principal thing, the land. Thabo, the owner of the principal thing, becomes owner of the whole.
The house belongs to the owner of the land, viz. Thabo, due to accession. The house is inseparable and land is always the principal thing. As the owner of the principal thing, Thabo becomes owner of the accessory, the house.
The garden built on the land on the mountain slope and the fruits
Faiza has entered into a valid contract of sale with Helen for the tomatoes and the oranges. Even though the tomatoes and oranges do not exist as separate things at the time of the conclusion of the sale, the sale is nonetheless valid as it is possible to sell an expected thing.
As the good faith possessor of the land, Faiza became owner of the fruits of the land on separation subject to the rule on consumption. Faiza therefore becomes the owner of the tomatoes when they were picked. She then transferred ownership of the tomatoes to Helen when she delivered them. Thabo cannot vindicate the tomatoes and as this constitutes a consumption would have no claim against Faiza as there are no unconsumed fruits. Faiza is not the owner of the oranges, however, as they have not been picked. This means that she is in breach of contract as she will be unable to deliver those specific oranges, sale of generics was not recognised by Roman law.
The ownership and sale of the lower piece of land
Faiza enters into a valid contract of sale with Piet in respect of the lower piece of land.
Francois was the owner of the lower piece and so he could transfer ownership of the land to Faiza. As owner, Faiza could then transfer ownership of the land to Piet.
The reservation by the seller of the land of a building height restriction would amount to the creation of a valid urban praedial servitude in favour of the land on the mountain slopes which would be enforceable by the owner of the land on the mountain slopes, as it turns out at this point it is Thabo, with a claim in rem.
The collapse of the wooden floors
As discussed above, the house that Mohamed built on the lower piece of land would have acceded to the land. When Piet acquired ownership of the land he would also have acquired ownership of the house on the land.
The damaged floors are a latent defect. Piet would look to the seller of the land for a remedy in terms of the contract of sale of the land, which necessarily included the house which forms part of the land. Faiza has failed to guarantee against latent defects and therefore Piet would be entitled to a reduction in price. This is not a serious defect and so Piet would not be entitled to claim recession of the contract.
QUESTION THREE
Hamish, a theatre manager, wishes to acquire the following items: an undersized pig, and a performing seal that can balance a sword upon its nose. Allegra, a rather shady dealer in livestock, agrees to sell and deliver items having the specified qualities. Within two weeks the pig shows evidence of growing to a normal size and, although Allegra said the seal was amazing at balancing the sword on its nose it is actually a rather mediocre performer and drops the sword every now and then. Hamish is suspicious when he finds out that Allegra knew the pig’s mother was full sized. Allegra had, late one night, recently acquired a horse called Nedette which she quickly dispatched and boiled down into chewing gum. Nedette it turns out belonged to Thandi who loved her horse. Allegra also sells Hamish 24 cheeses at ZAR 300 per kilo and all the caviar in her store for ZAR 5000. On the day agreed for delivery there is a fire that destroys all the food that was sold. Finally Allegra sells Daisy to Piet who pays ZAR 1000 in advance of delivery. On the day for delivery it transpires that Daisy is a goat and Piet thought that he was buying the cow called Daisy.
Advise the parties drawing, where appropriate, the distinction between claims in rem and claims in personam Also identify the source of the obligations: whether, for example, from contract, delict or unjustified enrichment, and the consequences.
MODEL ANSWER
The large pig and the underperforming seal
Hamish and Allegra have entered into a valid contract of sale. Although the pig and the seal do not conform to Hamish’s expectation the objects are still substantially what was agreed, there is not an error as to the object of the contract.
Hamish and Allegra have entered into a valid contract of sale in respect of the pig. There is no error as to the object it is still in substance what was agreed. It is possible that by specifically agreeing to provide an undersized pig Allegra agreed to this as a term of the contract. Allegra would therefore have given a warranty as to the undersized nature of the pig and when it is established that the pig is not in fact undersized Hamish would have a claim against Allegra for breach of contract for his full consequential loss. However, Allegra would appear to have intentionally misdescribed the pig as she knew that the pig’s mother was not undersized. This would constitute fraud and amount to a breach of contract entitling Hamish to make a claim in personam for his full consequential loss.
Hamish and Allegra have a valid contract of sale in respect of the seal. Although there is an error as to the quality, the seal is mediocre rather than amazing, this is not an error as to the substance of the object and does not invalidate the contract. The seal can balance a sword on its nose and Allegra’s description of the seal as being amazing amounts to puffery and therefore Hamish does not have a claim against her.
The chewing gum that has been made from Nedette the horse
Allegra could not have been made the owner of Nedette due to the nemo plus rule. Thus, it was Thandi’s horse that she turned into chewing gum. Allegra has made something new out of materials belonging to someone else. Allegra may have added
her own materials, which would mean the reducibility test would not be applied, but in any event the chewing gum cannot be reduced to its former state and therefore the maker of the new object, Allegra, becomes the owner of the new object, the chewing gum, by specification.
Allegra has been enriched at Thandi’s expense and so Thandi has an enrichment claim, in personam, against Allegra for the extent to which Allegra was enriched at her expense (Enrichment by interference). There is also a chance that Thandi can sue Allegra for theft, as Allegra may have known that she was gaining dishonestly. If so, Thandi will recover more than just the enrichment amount (in Roman law it was twice the value).
The sale of the cheese and the caviar
Hamish entered into valid contracts of sale with Allegra for cheese and caviar. The objects were destroyed before delivery, however, and so one must determine who bore the risk of that loss.
The contract of sale for the cheese has not been perfected, there is a definite price and object, but the price has not yet been fully determined. The risk of deterioration rests on the buyer but the risk of destruction had not passed to the buyer. The contract cannot become perfect and is therefore void. Hamish need not pay Allegra the purchase price for the cheese.
The contract of sale for the caviar was concluded and perfected, the object and price had been fully determined and there were no suspensive conditions. Therefore the risk of deterioration and destruction had transferred to the buyer. Hamish therefore has to pay the full purchase price for the caviar despite the fact that Allegra cannot deliver it. This assumes that the fire was not the result of the seller’s negligence or intentional destruction. If it was, then the seller is liable to the buyer for full consequential loss.
The sale of Daisy
Piet and Allegra have not reached agreement on the object of the contract, Piet believes it is a cow and Allegra a goat. Without agreement on the object no contract of sale arises. Piet has already paid Allegra and is therefore entitled to an enrichment claim, in personam, for the amount which he paid over, R1000, in terms of the condictio indebiti against Allegra.
MARKER’S NOTES
The most important aspects to answering this question were to clearly demonstrate an understanding of the requirements for a valid sale, the operation of the rules on the transfer of risk in sale, the duties of the buyer and seller in a contract of sale and finally the rules on specification. Again a good answer was one which thoroughly addressed each of the issues which arise in the question, explaining which contracts were valid and why, where parties had breached the contract, who was liable for the destruction of the object of the sale and why and describing each of the elements required to establish acquisition of ownership by specification. The issues arising from the normal sized pig were difficult. The most important aspect here was to recognise that there was a valid contract of sale
CLH June Exam 2015 Model Answer and Marker s Notes
Course: Systems and Context of South African Law (PVL1004/7F)
University: University of Cape Town
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