CONTRACT OF SALE

MR KINYANJUI
 CONTRACT OF SALE
• A contract of sale may be defined as a contract in which
party (the seller ) undertakes to deliver the sale (merx) to
another party (the buyer) who in exchange for this agrees
to pay the seller a certain sum of money (the purchase
price)
• In addition to the general requirements for a valid
contract, parties to a contract of sale must agree on the
existence of consensus regarding the purchase price and
the article sold shows that a contract of sale has been
concluded and distinguishes it from other types of
contract.
• A valid contract of sale can come into existence only if there is
an agreement regarding the sale (merx). The sale must be
defined or ascertainable.
• The sale is definite if it is mentioned by the name in the
agreement e.g the cow called Queen or a sale of a quantity of
a particular type of a thing is ascertainable since the number or
weight is mentioned together with the type of a thing e.g one
thousands litres of petrol.
• The sale may consist of movable and immovable goods or
incorporeal thing e.g a claim. In keeping the general
requirement that contract will come into being where the law
prohibits the sale eg illegal drugs.
RIGHTS OF THE PURCHASER

• 1. The purchaser is entitled to delivery

• 2. The purchaser is entitled to preservation of the sale
pending delivery.
• 3. The purchaser is entitled to be protected by the seller
against eviction.
• 4. The purchaser is entitled to a sale free from latent
defects.
RIGHTS OF THE SELLER

• The seller is entitled to payment of the purchase price by

the purchaser. The payment of purchase price is one of
the characteristics of a contract of sale.
REMEDIES
• The remedies for breach of implied warranty against latent
defects are called
• 1 – Actio Redhibitoria
• 2-Actio Quanti Minoris
ACTION REDHIBITORIA

• If the latent defect is so material that had he known the

defects the purchaser would have never bought the
article or if the defect renders the article useless the
purchaser may claim the following-
• - Return of the purchase
• - Repayment of all expenses incurred regarding the
receipt and preservation of the sale
• - Reimbursement for improvement effected by the
purchaser to the sale
• - The purchaser must return the merx together with
all that has accrued to it.
ACTION QUANTI MINORIS
• This is the remedy which arises where the purchaser will
have been satisfied with keeping the article and claiming a
reduction of the purchase price. The reduction is
calculated by deducting the value of the defective merx
from the purchase price.
 THE TRANSFER OF OWNERSHIP
• There are four requirements as pertains to transfer of
ownership –
• The transferor must deliver the thing to the transferee.
However immovable property can only be transferred by
means of registration of deed.
• Both parties must have the intention that ownership should
pass from the transferor to the transferee.
• The transferor must be in a position to transfer ownership
and that he must be the owner of property.
• In case of contract of sale the purchase price must be paid
or security given for its payment or credit must have been
granted. If the it is cash sale ownership will pass only once
the purchase price is paid or security is given.
DELIVERY
• Movable property has to be delivered to the transferee. There
are different forms.
FORMS OF DELIVERY
A) ACTUAL DELIVERY
• This is the most common form of delivery and entails the
physical handing over of the merx y the seller to the purchaser.
(b) SYMBOLIC DELIVERY
• Here the merx is not physically handed over to the purchaser
but something else is delivered to the purchaser which enables
him to obtain control of the merx. E.g Handing over of car
keys to the buyer.
(c)DELIVERY WITH THE LONG HAND
• This entails the pointing out of the merx and its being made
available to the purchaser. This method is used where the
merx is too large or heavy to be handed over physically eg A
cow in the kraal
(d)DELIVERY WITH THE SHORT HAND
• This form of delivery occurs where the purchaser is already in
possession of the merx but does not hold it as the owner and
then subsequently holds it as owner.
• Eg John lends a car to Peter and while the car is in Peter’s
possession they agree that Peter will buy the car.
(e)CONSTITUTUM POSSESSORIUM
• This is a form of delivery where the seller still retains
possession of the merx but on behalf of the purchaser. Eg
Renting of land from the purchaser.
ACTIVITY 1
• Breach of contract occurs when there is defective
performance or non-performance of one or more terms of
the contract. The remedies of the parties will differ
depending on whether the breach is of a material term or
non-material term;
•
• Discuss the remedies available under contract law for a
breach of contract
ACTIVITY 2
• Crawley is doing some window shopping at Galo mall. He looks through

the window of one of the shops and sees a very beautiful coat marked for
sale at a price of P50.00. Crawley cannot believe his luck. He walks into
the store all smiles and tells the shop attendant that he has accepted the
offer and is willing to pay for the coat immediately. The shopkeeper refuses
to sell the coat to Crawley. This makes Crawley very angry. He refuses to
leave the shop without the coat. The shopkeeper calls the police who then
come and arrest Crawley for trespassing. In Court Crawley tells the Court
that he was not trespassing. He had a contract with the shop and was
entitled to remain in the shop until the contract had been performed.
• Do you think Crawley had a contract with the shop? Discuss.