SECTION 2

CONTRACT OF SALE

2.1 What is a contract of sale?

Various definitions have been given to a contract of sale. The following

three sufficiently canvass the scope of a contract of sale. First, Hutton v
Lippert1 defines a contract of sale under Roman Dutch Law as ‘a contract in
which one person promises to deliver a thing to another, who on his part
promises to pay a certain price.’ Second, Christie2 defines a contract of sale
as ‘…the exchange of property for a price… the exchange of a merx for a
pretium.’ Third, Havenga et al3 defines a contract of sale as ‘a contract in
which one party (the seller) undertakes to deliver the merx to another party
(the buyer or purchaser) and the purchaser in exchange for this, agrees to
pay the seller a certain sum of money (the purchase price)

Three things essentially emerge for a contract to be deemed a contract of

sale namely:
a) Agreement or meeting of the minds (consensus) of the contracting
parties to enter into an agreement of sale.
b) Agreement on the thing sold and
c) Agreement on the purchase price to be paid for the thing sold.

4
In Kovi v Ashanti Goldfields Zimbabwe Ltd & Another, the court
highlighted the following:

There are three essential requirements of a contract of sale. These are

agreement (consensus ad idem); a thing sold (merx); and a price (pretium).
Neither delivery nor payment is necessary to the creation of the contract,
for they both fall within the category of its performance.

From the above, a contract of sale can be defined as an agreement with all
the essential elements of a valid contract where a seller undertakes to
exchange property with the purchaser for an agreed price.

A few key issues are worth noting. First, once the seller and the purchaser
agree on the above three essentials of a contract of sale, a contract of sale
comes into existence or becomes perfecta. If the contract is subject to
                                                                                                                         
1
(1883) 3 App, Cas 309. See also Clarinhan Brothers v Wessels Trustee 1927 AD 27 at 282 and H v L
2
R.H Christie, Business Law in Zimbabwe, Juta & Co. Ltd (1998 reprinted 2012), 141.
3
General Principles of Commercial Law, Juta & Co. Ltd (2010) Seventh edition 151.
4
2007 (2) ZLR 354 (H).

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conditions agreed to by the parties, 5 the contract of sale comes into
existence upon parties agreeing on the three essential elements but
becomes operational when the conditions have been fulfilled.

Second, the payment of the purchase price and delivery are not essential
elements of an agreement of sale. They are duties that parties have to
perform under a contract of sale.

Third, there are no formalities required when concluding a contract of sale.

An agreement of sale may be either oral6 or reduced in writing.7 According
to Mhute v Chifamba,

A contract of sale may be made orally, without it being put in writing. The
parties may agree, however, that the oral contract will not be legally
binding until it is drawn up in a written agreement. Where the parties to an
oral agreement mention that the contract should be reduced to writing, the
question is whether the parties intended that the contract would not be
binding until the written agreement had been signed or simply that the
contract should be binding immediately but should subsequently be put in
writing to facilitate proof of the terms of the contract. The onus of proof is
on the party who asserts that an oral contract was not intended to be
binding until reduced to writing and signed. In the present case it was clear
that the parties had intended the oral contract to be binding and its
reduction to writing was intended only to aid the proof of the terms of the
contract.8

2.2 Essential ingredients of a contract of sale

A. Agreement (Consensus ad idem)
For a contract of sale to exist, there should be a clear intention to buy and a
related intention to sale.9 The two parties must be in agreement that the
contract is one of purchase and sale and not some other type of contract.
Clear intention of an exchange of property for a price must be present.10

                                                                                                                         
5
Like in Muranda v Todzaniso & Another 1988 (2) ZLR 325, X-Trend-a-Home (Pvt) Ltd v Hoselaw
Investments (Pvt) Ltd 2000 (2) 348 (S) and Lincoln Investments (Pvt) Ltd v Sarbah 2000 (2) 297 (S). For
a further discussion of how Zimbabwean courts have dealt with conditions see I Maja, The Law of
Contract in Zimbabwe, (2015) The Maja Foundation, 86-90.
6
Kovi v Ashanti Goldfields Zimbabwe Ltd & Another 2007 (2) ZLR 354 (H).
7
Mhute v Chifamba 1999 (2) ZLR 155.
8
1999 (2) ZLR 155.
9
See Juta & Co Ltd v Rorich 1924 TPD 730 where the court held that one of the essentials of a
contract of sale that distinguishes it from a contract of agency is that there be an agreement by one
party to sell and the other to buy.    
10
See Margate Estate v Moore 1943 TPD 54 & Commissioner of Inland Revenue v Saner 1927 TPD
162

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Suffice to mention is that the intention to buy and sell can be gleaned from
the express or implied declaration of the parties as well as the
circumstances surrounding the transaction.

It is also important to note that the agreement should satisfy the following
requirements:
a) The consent must be rational and should be given by a person with
the mental capacity to do so. It therefore follows that consent cannot
exist in cases of intoxication or insanity.
b) The consent must be given freely and voluntarily. It should not be
induced by fraud, duress or undue influence.11
c) The parties must mutually communicate their intention to buy and
sale.

B. The property sold (Merx)

For a contract of sale to come into existence, parties should agree on the
property to be sold. This property is sometimes referred to as the subject
matter of the sale, the thing sold, goods, commodities, object of sale, item
sold, or merx. This can be anything of commercial value (res commercium).

The merx can come in any of the following forms:

i) Any corporeal (material or tangible) or incorporeal (intangible for
example a claim, servitude or patent) asset of some commercial
value;
ii) Any movable or immovable property and
iii) Anything or any object that can be subject to ownership and can
be an object of a commercial transaction.

The following can be sold:12

a) Expectation or hope. An example is share realization;
b) A thing in existence and a thing not yet in existence;
c) Ascertained and unascertained goods;
d) Already manufactured goods and goods to be manufactured.
e) One’s own property and property belonging to a third party.
f) Property free from litigation and some property subject to litigation.

There are instances where there is legislative intervention on which goods

are to be sold to whom and which ones are not to be sold. For instance, the
Prevention of Discrimination Act [Chapter 10:12] prohibits discrimination in
the sale of immoveable property on the basis of race, tribe, place of origin,
                                                                                                                         
11
Ferguson & Partners v Zimbabwe Federation of Trade Unions & Others 2004 (1) ZLR 475 (H)
12
(See R v B 1959 (1) R&N 393, R v AJ Construction 1964 RLR 456)

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political opinions, colour or sex. Again, the Grain Marketing Act [Chapter
18:14] confers monopoly on the Grain Marketing Board in the sale and
purchase of controlled products including the price thereof. The Control of
Goods Act [Chapter 14:05] provides for the control of the distribution,
disposal, purchase and sale of certain controlled goods from time to time.

The following cannot be sold:

a) Things owned by the buyer. It is however possible to enter into a
valid sale of stolen property, but ownership will not pass without the
consent of the owner.
b) Things prohibited by law. For example, illegal drugs.
c) Public property.
d) Clients cannot sell things subject to legal action to their legal
practitioner.
e) A thing no longer in existence or unknown to the parties.
f) Right of inheritance.

A number of legal principles are worth noting concerning the merx. First,
the merx must be clearly defined and must be ascertainable. Put differently,
the property sold must be defined with sufficient clarity and certainty that it
must be clear what exactly is being sold.13 Whether or not a merx is clearly
defined is usually a question of interpretation by the courts and depends on
the circumstances of each case. In Hilliard & Wenborne v Tabor Frost,14 the
addition of etc to the description of the property was held to be acceptable.
A sale of ‘up to two hundred head of breeding stock at eighty dollars per
head’ was enforced in Clapham v Struckel.15

Second, the law permits the sale of property not yet in existence but
expected to come into existence at a future date.16 Such property can either
be made with specifications or without specification. Property made without
specifications is referred to as a ‘spes’ or hope of a thing where it is not clear
whether the thing will come into existence and if so, the quality and quantity
is unknown.

Third, if the property was no longer in existence at the time of contracting,

the sale is usually deemed to be void for initial impossibility. The
requirements are that the non-existence should be unknown to both

                                                                                                                         
13
See Munro v John & Fletcher 1916 SR 57.
14
1938 SR 89.
15
1979 RLR 521.
16
Rhodesia Wire Industries (pvt) Ltd v A & J Constructions 1964 RLR 456.  

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parties,17 the non-existence should not be the fault of one of the parties18
and the seller should not have represented that the property exists.19

Fourth, the law allows the sale of another person’s property20 provided the
seller delivers to the buyer and guarantees against eviction or pays the
buyer damages if he fails to deliver and or guarantee against eviction.21

C. Purchase price (Pretium)

For an agreement of sale to come into existence, parties must agree on the
purchase price. This requirement was summed up in Chikoma V Mukweza22
where it was held that:
There can be no valid sale unless the parties have agreed on a purchase
price. If its not stated clearly, it must be stated implicitly. There must be an
agreed method by which the price can be ascertained provided it can be
achieved with requisite degree of certainty, the sale shall be valid.

The purchase price must be expressed in money. If it is not expressed in

money, then the contract will not be a contract of sale but either a donation,
contract of exchange, trade-in agreement or barter agreement. If the
agreement is expressed partly in money and partly in goods or services, it
will only be a contract of sale if the money component is greater.23

The purchase price must be fixed in the contract or capable of

ascertainment.24 The price can be ascertained by reference to market rates,
the seller’s usual price25 or from previous dealings between parties as long
as such prices are available. 26 For example, in Macey’s Consolidated
Limited v Chesebrough-Ponds (Private) Limited27 the court held at the sale
of future goods at the ruling prices at the time of the order being placed
was valid as the ruling prices were readily ascertainable. Conversely, in

                                                                                                                         
17
Scrutton v Ehrlich 1908 TS 300.
18
Theron Ltd v Gross 1929 CPD 345.
19
Inhambane Oil and Mineral Development Syndicate Ltd v Mears and Ford (1906) 23 SC 250. Note
that according to Stansfeld v Kuhn 1940 NPD 238 246-7, partial destruction of the merx without the
fault of either party and unknown to both parties, cannot invalidate an agreement of sale. What will
be affected is the purchase price that will be reduced to account for the partial destruction of the
merx.
20
Frye’s (Pty) Ltd v Kies 1957 (3) SA 575 (A) 581.
21
See Magwenzi v Chamunorwa and Another 1995 (2) ZLR 522 (S).
22
1998 (1) ZLR 541.
23
See Heiberg v Jeffares 1936 SR 6.
24
See Erasmus v Moore 1943 TPD 54.
25
See Calamas v R 1949 SR 22 26.
26
See Cassimjee v Cassimjee 1947 (3) SA 701.
27
1967 RLR 253.

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Baxter v Maxwell 28 the court held as void a contract which referred to
market rates where it was impossible to calculate and ascertain such rates.

The question of whether a reasonable price should be impliedly charged in

the absence of an agreed price, a ruling market price, the sellers’ usual
price or the price from previous dealings remains open. On one hand,
Mechanick v Simon29 held that there is an implied term to sale at a ‘fair and
reasonable price’ in the absence of an ascertainable price. On the other
hand, Elite Electrical Contractors v Covered Wagon Restaurant30 held that it
is not competent to sell at a reasonable price since it is vague.

Finally, at common law parties have the freedom to fix the price as high or
low as they wish and to determine how the price ought to be paid. This is
however subject to two exceptions. First, there may be price-control
legislation like the Control of Goods Act (Chapter 14:05) that can regulate
the pricing of certain categories of goods. Second, the common law
doctrine of laesio enormis allowed for rescission of contract if the price was
less than half or more than double the value of the merx. However, section
8 of the General Law Amendment Act [Chapter 8:07] abolished doctrine.
Despite the abolition, Walter v Lamb31 held that an extreme disproportion
between price and value might entitle one party to rescind on the basis of
implied fraud.

2.3 The legal effects of the contract of sale

It is imperative to note that common law provides a legal framework for
contracts of sale. There are natural consequences (naturalia) that flow from
contracts of sale under common law and if parties do not make
arrangements to the contrary, the naturalia will follow. However, the
naturalia can be excluded expressly or tacitly. The usual common law legal
consequences of an agreement of sale relate to passage of risk, passage of
ownership and the rights of the buyer and seller.

A. Passage of risk
Risk relates to the destruction, loss or damage of the merx as well as the
right to any potential benefit or profit accruing to the merx. Under Roman-
Dutch law risk generally passes to the purchaser when the contract of sale is
concluded (or is perfecta) or in contracts involving sale of unascertained
property, as soon as property of the contract description has been

                                                                                                                         
1923 SR 130.  
28

29
1920 CPD 333.
30
1972 (2) RLR 221 (A) 223.
31
1925 SR 81 90.

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appropriated to the contract. Manase and Madhuku contend that ‘[t]he
passing of risk means that the risk of destruction or other risks are borne by
the buyer despite the fact that both ownership and the physical possession
of the goods are still with the seller.’ 32 The purchaser in such cases has to
pay the pretium even when the merx is destroyed and cannot plead
supervening impossibility. Interestingly, profits also pass with risk to the
buyer upon conclusion of the contract of sale.33

The rationale for the passage of risk rule is that there is often a delay
between the of concluding a contract and the time delivery to the
purchaser usually occurs.

The following are exceptions to the risk rule:

i) Risk will not pass to the purchaser if the sale is subject to a
suspensive condition until the condition is fulfilled. This is
because the sale is not perfected until the condition is fulfilled.34
ii) Risk will not pass if the seller intentionally or negligently destroys
the merx.
iii) Risk doesn’t pass where the pretium cannot be ascertained until it
is weighed, measured or counted. This is because the sale will not
be perfected.35
iv) Risk does not pass where the parties agree that the risk rule shall
not apply.
v) In cases where risk has passed, such risk will return to the seller if
he fails to deliver on time since delay by the other attracts the risk
to him. The seller will essentially be in breach of contract and such
breach return risk to him.36

B. Passage of ownership
Ownership refers to the sum total of rights over a thing. It includes the
rights of possession, use, enjoyment and disposal of the thing. Under
Roman Dutch Law, ownership of property sold under a contract of sale does
not automatically pass at the conclusion of the contract.37 At this stage the
rights by parties are personal rights. The following should be satisfied
before ownership is passed:

                                                                                                                         
32
A handbook on commercial law in Zimbabwe (2002) 38.    
33
Nel v Bornman 1968 (1) SA 4988  
34
Schultz v Morton & Co 1918 TPD 343.
35
Page v Blieden & Kaplan 1916 TPD 606.
36
Fitwell Clothing v Quorn Hotel 1966 RLR 323 (A).
37
O’Callaghan’s Assignees v Cavanagh (1882) 2 SC 122

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1. The purchase price should be fully paid or security should be given
for its payment
If the sale is a cash sale, the purchase price should be fully paid or security
of its payment should be given. If payment is supposed to be made by
cheque, ownership will only pass when the cheque is honoured. In a credit
sale (where the seller is given an extension for the payment of the purchase
price), ownership will pass upon delivery.38

2. There must be an intention to pass and receive ownership

The seller must basically have an intention to pass ownership and the
purchaser should have a related intention to receive ownership upon
payment of the purchase price. In Weeks v Amalgamated Agencies
Limited,39 the court held that
[U]pon a contract of sale, the ownership of property sold does not pass to
the purchaser, unless, in addition to giving delivery, the seller has the
intention of transferring the property and the purchaser has the intention of
becoming the owner.

3. The transferor must have capacity to transfer ownership

The seller must either be the owner of the property or must have the
owner’s authority to transfer ownership. If no such capacity exists, no
transfer will take place. The nemo dat quo non habet principle explicitly
provides that one cannot transfer title that (s)he does not have. Also
imperative to note is that the purchaser should also have capacity to receive
ownership of the thing sold. The true owner of the merx always retains the
right to vindicate the merx from anyone (including a bona fide buyer) in
whose possession the goods are found.40

4. The thing sold must be capable of being owned

The things that are capable of being owned have been discussed in 2.2
above.

5. The merx should be delivered to the purchaser

Delivery refers to the transfer of possession of a thing from one person to
another. The possessor will then have full custody and control of the
delivered merx. Delivery has to be made in terms of the agreement to a
specific place and to the buyer or his designated agent. Delivery has to be

                                                                                                                         
38
Havenga et al 157.
39
1920 AD 218.
40
R v Kotze 1936 SR 130 and Leal & Co v Williams 1906 TS 554.

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accepted by the buyer. 41 Once this is done, ownership is said to have
passed.42

The process of delivery is a legal concept that depends on the nature of the
property being sold. For instance, delivery of immovable property is in the
form of registration of a Deed of Transfer in the Deeds Office in the buyer’s
name.43 The buyer becomes a registered owner in terms of the Deeds
Registries Act [Chapter 20:05].

For incorporeal movables such as contractual rights, shares, negotiable

instruments or benefits under a life insurance policy delivery comes in the
form of cession.

As regards delivery of corporeal movable property, delivery comes in two

forms namely:

a. Normal or actual delivery

This refers to the actual movement or handing over of the merx from the
seller to the buyer

b. Constructive or fictitious delivery

This occurs where actual delivery is difficult, impossible or unnecessary. The
merx is not physically handed over to the purchaser but something else is
handed over to the purchaser that enables him or her to obtain control of
the merx.

Symbolic delivery comes in any of the following forms:

i) Symbolic delivery – the merx itself is not delivered but the seller
delivers some symbol of the merx which allows the purchaser to take
the delivery.44 For example, handing over the keys of the warehouse
where the merx is stored or handing over of a bill of lading.

ii) Delivery with the long hand (traditio longa manu) – this normally
occurs where actual delivery is impossible, due to the weight , bulk
or other special circumstances. The seller usually gives he buyer
effective control of the merx by pointing it out and authorizing the
buyer to effectively take possession of it at his own convenience.45
                                                                                                                         
41
Ex Parte Smith 1955 SR 292.
42
Stein v Stein 1919 EDL 99.  
43
Breytenbach v Van Wijk 1923 AD 541 547.
44
See Land Lease Finance (Private) Limited v C 1976 (4) SA 464.
45
Matabeleland Trading Association Limited v Bikkers 1927 SR 78

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 iii) Delivery with short hand (traditio brevi manu) – this occurs where
the buyer is already in physical possession of the merx and
subsequently takes delivery as the owner. 46 For example, Eliora
lends a car to Netania and while the car is in Netania’s possession,
Eliora sells the car to Netania. Netania will now hold the car as an
owner.

iv) Attornment – this is substantially similar to delivery brevi manu. It

occurs the property sold is in possession of a third party. Upon the
conclusion of an agreement of sale the third party will continue
possessing the property now on behalf of the buyer. Both the seller
and buyer will be clear that the third party now possesses the
property on behalf of the buyer.47

v) Constitutum possessorium – this occurs when at the conclusion of

an agreement of sale, the seller retains possession of the merx as an
agent of the buyer. For example, a seller can sale a house to a buyer
and agree with the buyer that after the sale, the buyer remains in the
property as a tenant.48

2.4 Rights and duties of the parties

2.4.1 Duties of the seller and rights of the buyer

A. The seller has a duty to preserve or take care of the merx

The seller has the obligation to preserve and take proper care of the merx
before it is delivered to the buyer. The seller is liable for any material loss
caused by his willful act (intentional conduct) or negligence even if risk
would have passed to the buyer. This way, the law seeks to encourage the
seller and buyer to act in good faith towards the other.

Two things are worth noting. First, if the buyer fails to take delivery the law
regards the buyer to be in mora. The seller will only be liable for gross
negligence (but not ordinary negligence) and intentional destruction of the
merx. Whenever there is extensive damage, Frumer v Maitland49 establishes
that the buyer is entitled to cancel the agreement and claim for damages. In
Schreiner JA’s words:
                                                                                                                         
46
O’Callaghan’s Assignees v Cavanagh (1882) 2 SC 122.
47
Hearn & Co (Pty) Ltd v Bleiman 1950 (3) SA 617 (C).
48
See Exparte Smith 1965/6 SR 92; R v Burrell 1950 SR 278 and Credit Corporation of Rhodesia
Limited v Fifth Avenue Investments (Pvt) Ltd 1960 (4) SA 704 (SR) 708.
49
1954 (3) SA 840 843.  

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 It is his (Seller’s) duty to look after it as would a bonus paterfamilias and if
he fails in that duty the purchaser will be entitled to claim damages or, if,
but only if, the result of the vendor’s neglect is that the thing sold is
materially different from the thing tendered, to repudiate the contract and
refuse to take delivery.

Second, if the seller fails to deliver on time the law regards the seller to be
in mora. The seller is therefore be liable for ordinary negligence, gross
negligence and intentional destruction of the merx.

B. The seller has the duty to deliver the merx

Delivery does not necessarily mean that the seller has to physically offload
the merx on the buyer’s doorstep. It means that the seller should make the
merx available to the purchaser and that the purchaser should have free
and undisturbed possession of the merx. Section 2.3 above has extensively
dealt with the various modes of delivery that are acceptable at law.

At least seven legal principles are worth noting regarding delivery. First, the
seller must deliver the actual property sold as described in the agreement
of sale. If the seller fails to deliver, the buyer is entitled to approach the
courts and seek either an order for specific performance or claim damages
caused by non-delivery or delay in delivery. 50 The normal measure of
damages is the difference between the price and the value (the ruling
market price) on the date delivery ought to have been made.51

Second, the seller is obliged to deliver the merx within the time stipulated
in the agreement. However, if no time is stipulated, delivery must be
effected within a reasonable time. In cases where the time for delivery is not
stipulated, it is usually advisable for the buyer to place the seller in mora
through a letter of demand before instituting legal proceedings.52

Third, the seller must deliver the merx at the place stipulated in the
agreement of sale. The place of deliver may expressly agreed by the parties
or may be implied from trade usage. However, if the place of delivery is not
expressly provided for in the agreement of sale, the general rule is that
unascertained goods are to be delivered at the seller’s place of business or
residence;53 ascertained goods are to be delivered at the place they are

                                                                                                                         
50
See Rhodesia Cold Storage & Trading Co Limited v Liquidator Beira Cold Storage Limited (1905) 2
Buch AC 253
51
see Novick v Benjamin 1972 (2) SA 842 (A).
52
See Breytenbach v Van Wijk 1023 AD 541.
53
Voet 46 3 12.

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situated at the time of sale54 and manufactured goods are to be delivered at
the place of manufacture.55 Where the seller has agreed to send goods to
the buyer but has not expressly contracted to deliver at their destination,
the seller is deemed to have sufficiently delivered if he delivers the goods
to a career and enters into a reasonable carriage contract at the buyer’s
expense. 56 The carrier in this case is regarded as the buyer’s agent.
However, if the seller expressly contracts to deliver goods to the buyer’s
destination, he will satisfactorily discharge his duty to deliver if the buyer
receives the goods. In this case, the carrier will be the seller’s agent and the
seller will pay for all the freight, duty and ancillary charges.57

Fourth, the seller should deliver the merx using the method stipulated in
the agreement of sale. The time, method and place of delivery are usually
governed by the contract of sale between the parties. If the seller fails to
deliver in terms of the agreement of sale, the buyer is entitled to refuse to
accept delivery, seek an order compelling proper delivery and to either
cancel the agreement or sue for damages.58 Damages for failing to deliver
the merx are usually calculated using the market price of similar goods and
are calculated from the date delivery was due. 59 The essence of these
contractual damages is to put the innocent party to the position he would
have been had delivery been properly effected.60 If there is negligence in
the form of inordinate delay, delictual damages can be claimed.61

Fifth, it is permissible in a cash sale for a seller to refuse to deliver the merx
until payment has been made.62 This is called the principle of reciprocity. In
a cash or mortgage sale of land however, an acceptable guarantee suffices
as payment.63 Sixth, the seller’s duty to deliver the merx impliedly includes a
duty to deliver its appurtenances and accessories64 together with its fruits
accrued since the date of sale.65

                                                                                                                         
54
Lewis v Elske 1921 AD 36 37.
55
Goldblatt v Merwe (1902) 19 SC 373.
56
Nel v South African Railways & Harbours 1924 AD 30.  
57
See Stephen Fraser & Co v Clydesdale Transvaal Collieries Limited 1903 TH 121.
58
De Villiers v Maister and Shagam (1910) 27 SC 73.
59
See Slater & Son v deJongh 1922 TPD 327; Broughton v Darris 1921 TPD 409 and Hersman v
Shapiro 1926 TPD 567.
60
Landau v City Auction Mart 1940 AD 284.
61
See Young v Land Values Limited 1924 WLD 216.
62
Lendalease Finance (Pty) Ltd v Corporation de Marcadeo Agricola 1976 (4) SA 464 (A).
63
For a discussion, see Linton v Corser 1952 (3) SA 685 (A) 693-4; Makoni v Khatso HH-2-97; Hoffmann
v Bekker 1918 AD 366 and Botha v Que Que Municipality 1973 (1) RLR 118 or 1973 (2) SA 754.
64
See Scheepers v Robbertse 1973 (2) SA 508 (N) & Falch v Wessels 1983 (4) SA 172 (T).
65
Voet 19 1 8.

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Finally, the seller should deliver the exact quantity of goods agreed. The
quantity delivered must not be more or less than what was contracted. If
more, the buyer may reject all of it or the excess or he may claim expenses
in accepting the excess.66 If a quantity delivered is less than the agreed, the
buyer may reject it in toto or accept what has been delivered but pay its
equivalent (prorate) value and proceed to sue what hasn’t been delivered.67
If there has been mixed delivery, the buyer may reject the whole package or
may opt to sort them out but be paid damages for so doing. If there is no
delivery and delivery is material to the contract, the buyer may opt out of
the contract with or without damages or he may seek damages or specific
performance. Where buyer has paid pretium, he has the right to claim it.68

3. The seller has the duty to guarantee the buyer against eviction
Under common law, all contracts of sale have an implied warranty against
eviction (vacuo possession).69 Eviction is generally interpreted to mean the
total or partial loss of possession of the property consequent on the third
party’s right.70 It includes the seller’s inability to obtain possession from a 3rd
party. Eviction includes voluntary surrender of the goods to the owner who
has an incontestable claim to the goods. Eviction shouldn’t be due to faults,
acts or negligence of the purchaser.

Through this implied term, the seller undertakes that the buyer will not be
disturbed in his enjoyment and possession of the merx by another person
with a better title to the merx than that of the buyer. Put differently, where
the purchaser is disturbed in his possession and enjoyment of the merx by
someone claiming legal title to it, he should notify the seller. The notice
does not need to be in writing. Upon receiving such notice, the seller has an
obligation to come to the purchaser’s assistance after being notified by the
purchaser. If the seller fails to come to the purchaser’s assistance, the seller
is said to be in breach of the warranty against eviction. The buyer can either
enforce the contract and claim damages or cancel the contract of sale and
claim a return of the purchase price.71

When threatened by 3rd parties purchaser must not give up possession

voluntarily unless the rights of the 3rd party are unassailable (obvious that

                                                                                                                         
66
Droomer v Cohen and Son 1921 OPD 66.
67
Nugget Footwear Mfrs Ltd v Pogson & Sons 1931 EDL 161.
68
See Plywood Products V Tropical Commercial & Industrial Limited 1955 SR 58.
69
York & Co v Jones 1961 R & N 490 494 or 1962 (1) SA 65 66-67 held that ‘… duty … to guarantee
the purchaser against eviction, i.e. subsequent dispossession, total or partial, by third parties claiming a
title superior to that which the purchaser has obtained from the seller.’
70
See Louis Botha Motors v James & Slabbert Motors (Pty) Ltd 1983 (3) SA 793 (A).
71
See General Finance Company (Pvt) Limited v Robertson 1980 (4) SA 122.

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they cannot be challenged).72 In Kanokanga v Evans and Others,73 the Court
held that the buyer is not obliged to put up a defense where the true owner
of the merx demands eviction because the owner’s rights are unassailable.
The buyer is obliged to raise proper vigorous available defence (virilis
defensio) against the third party’s claim.74 If the purchaser fails to put up a
competent defence to a contestable claim by a third party, the buyer will
lose his right of recourse against the seller.75

It is imperative to note that the guarantee against eviction will not be

implied in the following circumstances:
a. Where parties expressly agree to exclude the application of the
guarantee against eviction.
b. Where parties impliedly exclude the application of the warrantee
against eviction by the buyer’s knowledge of the doubtful nature of
the seller’s title to the property.76
c. Where its within the purchaser’s knowledge at the time the sale is
concluded that the 3rd party is the owner of the merx.
d. Where the cause of eviction arises after the sale and the seller is not
fraudulent.

One issue that Zimbabwean courts have dealt with concerns double sales
where the seller cannot guarantee more than one buyer vacant possession.
The general rule is that where ownership has not passed, the first sale
should be regarded as a valid sale.77 In Chingwaru v Chirinda and Others,78
a first sale was held valid because the first buyer had occupied the land and
made some improvements. The second buyer had done very little to
possess the land or assert his right to land.

However, there are times when special circumstances exist from the facts
that can cause a court to declare the second, third or subsequent sale valid
ahead of the first sale. For example, in Guga v Moyo and Others,79 the court
deemed a second sale valid because at least three special circumstances
existed. First, the second buyer had made improvements on the house in
good faith and stood to substantially lose if the property was awarded to
the first buyer. Second, the first buyer had failed to register a caveat on the

                                                                                                                         
72
Marimo v Brancos & Anor 2002 (2) ZLR 288 (H).
73
2000 (2) ZLR 41 (H).  
74
Moyo v Jani 1985 (1) ZLR 112.
75
See Weber and Pretorius v Gavronsky Brothers 1920 AD 48 51-52.  
76
Naested V Kia Ora Syndicate 1935 SR 117 124-125.
77
Mwayipaida Family Trust v Madoroba & Ors 2004 (1) ZLR 439 (S)
78
HH-152-91.
79
2000 (2) ZLR 458 (SC).

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property to secure his interest. Third, there were trust funds available to
adequately compensate the first buyer.

In Crundall Brothers (Private) Limited v Lazarus NO and Another,80 a second

sale was held valid where the seller sold shares to the second buyer on the
erroneous belief that the first buyer had lost his rights by virtue of the
Exchange Control Regulations.

There are three further principles worth noting about double sales. First,
where transfer has passed to the first buyer, the first buyer acquires an
indefeasible right and the second or subsequent buyer’s remedy will be an
action against the seller. Second, if transfer has been passed to a bona fide
second or subsequent buyer, the said buyer acquires an indefeasible right.
The first buyer’s remedy will be a claim for damages from the seller. Third, if
the second or subsequent buyer is mala fide, the first buyer can claim the
property from the second and subsequent buyer who in turn can claim for
damages from the seller.81

4. The seller has the duty to guarantee against latent defects

The seller is obliged to deliver a merx that is free from material patent and
latent defects unless a contract of sale provides the contrary.82 A patent
defect is one that is and must have been obvious to an ordinary buyer when
they inspected the merx.83 On the other hand a latent defect is one that is
hidden to an ordinary buyer at the time of sale and can be discovered as a
result of either a specialized inspection of the merx or will manifest as the
merx is used shortly after conclusion of the contract of sale.

A defect is generally regarded as an abnormal quality or attribute that

destroys or substantially impairs the utility (usefulness) or effectiveness of
the merx for the purposes for which it has been sold or for which it is
commonly used.84 For a patent or latent defect to affect a contract of sale, it
has to be a material defect. Courts usually use an objective test to
determine materiality of a defect.85 A seller who delivers a merx with a
minor defect is normally allowed to remedy the merx when claiming the
purchase price.86

                                                                                                                         
80
1991 (2) ZLR 125 (H).
81
See Chansa v Leeds and Another HH-33-88.
82
Dibley v Furter 1951 (4) SA 73.
83
Knight v Hemming 1958 R & N 555 (FS) 559 or 1959 (1) SA 288 290.
84
Holmedene Brickworks (Pty) Ltd v Roberts Construction Co. Ltd 1977 (3) SA 670 (A).
85
Dibley v Furter 1951 (4) SA 73.
86
Rattham and Sons Ltd v Industrial Caterers Limited 1951 SR 9.  

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4.1 Patent defects
The law’s approach to patent and latent defects differs. For patent defects,
the law does not hold the seller liable for patent defects if the buyer
inspected the merx before concluding the agreement of sale.87 The buyer
generally has the obligation to inspect the merx before concluding a
contract of sale. If the buyer fails to inspect the merx, the caveat empto
buyer beware) principle binds the buyer to a signed contract when fails to
inspect the merx and it turns out that there are patent defects on
ascertained goods. The situation is different for unascertained goods
because the selection of property in fulfillment of a contract of sale cannot
be completed until the buyer has participated and a buyer cannot be
obliged to accept a defective merx.88

4.2 Latent defects

An implied warranty against latent defects is usually read into every contract
of sale unless parties exclude it. The law assumes that the merx is sold free
from defects which makes it unfit for the purpose (ordinary or specific) sold
or bought for. This warranty makes the seller liable for latent defects even if
the seller was unaware89 of the latent defect and did not act in bad faith.

A buyer who wishes to institute a claim because of latent defects in the

merx must prove the following four things:

a. That there was a material defect in the merx;90

b. That the defect was present when the contract of sale was concluded.
However, Laurenco v Raja Dry Cleaners and Steam Laundry (Private)
Limited 91 establishes that the law presumes that a defect that
manifests itself shortly after conclusion of a contract of sale is
deemed to have existed at the time of sale.
c. That the defect was latent92 and
d. That the buyer was unaware of the defect at the time of conclusion of
the contract.93

It is interesting to note that as a general rule, an implied warranty against

latent defects is not available where the merx is sold voetstoots (as it stands,

                                                                                                                         
87
Muller v Hobbs (1904) 21 SC 669.
88
See Mackeurtan on Sale of Goods (5th Edition) paras 7 1 4-6.
89
Erasmus v Russell’s Executor 1904 TS 365.
90
See Reed Brothers v Bosch 1914 TPD 578.
91
1984 (2) ZLR 151 (S).
92
Deutschmann v Graham 1912 EDL 214.
93
Seboko v Soil 1949 (3) SA 337.

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with all its defects and vices).94 Sales by in execution, sales by executors and
trustees of insolvents, customs sales and sales conducted under statutory
powers are generally regarded as voetstoots even if the contracts of sale do
not expressly declare so.95

However, a voetstoots clause does not exempt the seller from liability for
latent defects in the following circumstances:

a. Where the seller knew of the defect and deliberately chose not to
disclose the defect at the time of sale, the seller will be held liable. Elston
v Dicker96 holds that in such circumstances, the seller is held liable for
latent defects even in the presence of a voetstoots clause on the basis of
fraudulent non-disclosure.

b. A voetstoots clause does not exempt the seller from liability for a
fraudulent or innocent misrepresentation unless parties agree
otherwise.97

c. A voetstoots clause does not limit the liability of a seller whose contract
falls within the ambit of the Consumer Contracts Act (Chapter 8:03).98
Section 2 of the Consumer Contracts Act essentially defines a consumer
contract as a contract for the sale or supply of movable goods or services
or both ‘in which the seller or supplier is dealing in the course of business
and the purchaser or user is not…’

d. Where there is doubt as to whether a sale is voetstoots or not, there is a

presumption against voetstoots.99

e. A voetstoots clause does not limit the liability of a seller when a defect
manifests soon after the conclusion of a contract of sale. Such a defect is
deemed to have existed at the time of sale.100

4.3 Remedies available to the buyer where latent defects are found
There are two main remedies available to the buyer whenever latent defects
are found in the merx namely a) aedilitian actions and consequential
damages.
                                                                                                                         
94
Claasens v Pretorius 1950 (1) SA 738 (O).
95
Estate Francis v Land Sales (Pty) Ltd & Ors 1940 NPD 441 461.
96
1995 (2) ZLR 375 (S). See also Matambo v Chakauya HB-23-92 & Truman v Leornard 1994 (4) SA 371.
97
Claasens v Pretorius 1950 (1) SA 738 (O) & Cockcroft v Baxter 1955 (4) SA 93 (C).
98
See section 4(1)(c) as read with the scheduled provision 1 of the Consumer Contracts Act.
99
Matambo v Chakauya HB-23-92.
100
See Norton v Johnston 1930 SR 93.  

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A. Aedilitian actions or remedies
R.H Christies convincingly argues that under aedilition actions, the seller’s
liability does not arise from an implied warranty against latent defects but
by operation of law from the old aediles’ edict.101 When claiming aedilition
remedies, it is therefore not necessary to prove that the seller had any
knowledge of the latent defect.102 The buyer must merely prove that the
latent defect existed at the time of sale. Aedilition actions come in the
following two forms:

i. Actio Redhibitoria
This refers to rescission of contract coupled with restitution. At least five
legal issues are worth noting. First, the remedy is available if the buyer can
prove the following:
a. That the latent defect is so serious as to render the merx unfit for the
purpose for which it was bought103 or
b. That the buyer would not have bought the merx if he had known of
the latent defect.104

Second, if several articles are sold as a unity, a redhibitory defect in one of

them would justify the redhibition of the entire lot bought.105 Third, action
redhibitoria is available to the buyer if the merx fails to live up to the
material statement of quality made during negotiations. 106 Fourth,
whenever there is a breach of warranty the buyer can choose to claim either
aedilition remedies in the form of action redhibitoria or consequential
damages for breach of warranty.107

Finally, a buyer who elects to redhibit is obliged to restore the property to

the seller.108 Where the buyer cannot restore the property, the buyer can
claim for the remedy of reduction of the purchase price.109 However, where
the buyer is able to restitute a substantial part of the merx, Harper v
Webster110 permits such a buyer to make monetary compensation for the
shortfall. Risk is usually borne by the party unsuccessful party in the
action.111
                                                                                                                         
101
Business Law in Zimbabwe (2012) 163.
102
Erasmus v Russell’s Executor 1904 TS 365.
103
Miller v Shirly 1925 SR 35.
104
See Lakier v Hager 1958 (4) SA 180 (T) and Reed Bros v Bosch 1914 (TPD) 578.
105
See Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A)..
106
Phame (Pty) Ltd v Paizes 1973 (3) SA 397 (A) 418.
107
See Hart v Vasloo 1925 SR 35.
108
Romla Products (Pvt) Ltd v Crick 1973 (1) RLR 225 or 1973 (3) SA 578.
109
SA Oil and Fat Industries Ltd v Park Rynie Whaling Co. Ltd 1916 AD 400.
110
1956 R & N 10 (FS) or 1956 (2) SA 495.
111
Pistorius v Hetherington 1949 (1) PH A4 (SR).

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ii. Actio Quanti Minoris or aestimatoria
This is an action for the reduction of the purchase price. It is normally
brought by the purchaser who is entitled to redhibit but decides not to do
so for the following reasons-:
a. He may not be able to give restitution;
b. He may have waived his right to redhibit;
c. The defects in the merx may not be sufficiently serious to justify
redhibition or rescission of sale;
d. He may merely insist on reduction of the price.

Action quanti minoris ia usually awarded if the merx fails to live up to the
material statement of quality made during negotiations112 or fails to live up
to a warranty. 113 Aestimatorian damages are normally measured by
assessing the difference between the purchase price and the market value
of the merx in its defective state at the time and the place where the merx
was when the defects were or ought to have been discovered. 114 Put
differently, the reduction in the purchase price is calculated by deducting
the value of the defective merx from the purchase price.

B. Consequential damages
This principle is equivalent to the Roman Law concept of actio empti or
actio ex empto. It provides that a buyer that suffers loss other than the
diminished value of the merx as a result of a latent defect is entitled to
damages as compensation for that loss in the following circumstances:

i. Breach of Warranty or term – If the existence of a latent defect

amounts to breach of an express warranty or a tacit term of the
contract, the buyer can choose to claim aedilition damages or
damages for breach of contract.115
ii. Misrepresentation – Where a seller who knows of a defect chooses to
either misrepresent its absence or not to disclose its presence
(fraudulent non-disclosure), the buyer can elect to claim for aedilition
damages or delictual damages for fraud.116
iii. Manufacturer or Expert liability – Where the seller is a
manufacturer of the merx or a specialist dealer who publicly claims to
have expertise regarding the merx, Lockie v Wightman & Co Ltd117
establishes that the seller can claim for damages for consequential
                                                                                                                         
112
Phame (Pty) Ltd v Paizes 1973 (3) SA 397 (A) 418.
113
SA Oil and Fat Industries Ltd v Park Rynie Whaling Co Ltd 1916 AD 400.
114
Sarembock v Medical Leasing Services (Pty) Ltd 1991 (1) SA 344 (A).
115
Evans & Plows v Willis & Co 1923 CPD 496.
116
Philips & Co v Greyvenstein & Co. 1922 EDL 29.
117
1949 SR 216.  

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 loss. The rationale is that their specialist knowledge makes them
possess the ability to know if a latent defect exists in the merx. The law
places upon a manufacturer or expert an obligation to sell a merx that
is free from latent defects. This is an extention of the pothier’s rule by
imposing strict liability on a manufacturer or an expert. This liability
can however, be excluded by express agreement.118

2.4.2 Duties of the Buyer and Remedies of the Seller

A. The buyer has the duty to pay the purchase price

The buyer should pay the purchase price in terms of the agreement of
sale.119 If payment is being made by cheque, the payment is deemed to be
effective when the check has been honoured.

B. The buyer has the obligation to accept delivery

The buyer is obliged to accept proper delivery when it is made. However,
before accepting the merx, the buyer is obliged to inspect the merx within a
reasonable time to ascertain whether what has been delivered tallies with
what was agreed in the contract.120 If the merx delivered does not tally with
the contract decision, the buyer can reject the merx and return it to the
seller. In that case, the buyer is entitled to indemnification for expenses
incurred in storing and returning the merx.121

C. The buyer should indemnify the seller for expenses incurred

The buyer has the duty to reimburse the seller for all expenses incurred by
the Seller in taking care of the merx is delivery is not effected soon after
conclusion of the contract. Since risk would have ordinarily passed to the
buyer, the seller will essentially be acting for the benefit of the buyer and
the buyer should reimburse the Seller for all expenses incurred.

D. The buyer is obliged to inspect the merx

The buyer is obliged to inspect the merx within a reasonable time to
ascertain whether what has been delivered tallies with what was agreed in
the contract.122
                                                                                                                         
118
Trust Bank van Afrika Bpk v Bekker 1961 (3) SA 236 (T). It is interesting to note that Jackson (Pvt) Ltd
v Salisbury Family Health Studio (Pvt) Ltd 1974 (1) RLR 92 (A) or 1974 (2) SA 619 suggests that the strict
liability for manufacturers and experts can be excluded impliedly where a buyer participates in the
manufacturing process. In this case, the buyer chose the material out of which the goods were to be
manufactured without informing the manufacturer the usual stresses that the seller would be subjected.
119
Wehr v Botha NO 1965 (3) SA 46.
120
See Gluckman v Heyneck 1925 TPD 211 @ 217.
121
See Mourni v Malan 1909 TS 202; Natal Shipping v South African Madagascar Agencies Limited
1921 TPD 530 and Mitchel’s Piano Saloons v Theunissen 1919 TPD 400.  
122
See Gluckman v Heyneck 1925 TPD 211 @ 217.

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