The influence of the Consumer Protection Act 68 of 2008 on the common law of sale

Abstract

The purpose of this thesis is to investigate to what extent the Consumer Protection Act 68 of 2008 (CPA) influences the common law of sale in South Africa. “Common law of sale” refers to the essentialia of sale (the minimum characteristics that parties must have consensus on to conclude a valid sale). The parties must have consensus on the intention to buy and sell, the things sold and the purchase price. The common law of sale also refers to the common law duties of the parties, the duties of the seller in particular (conversely therefore the rights of the buyer). The primary duties of the seller which will be investigated are: a. the duty of safe-keeping (including and investigation into the passing of benefit and risk doctrine); b. the duty of delivery and transfer of ownership; c. the warranty against eviction; and d. the warranty against latent defects. The primary common law duties of the buyer to pay the purchase price and accept the thing sold are included in the investigation as well. The formalities required in certain sale agreements, that wording must be in plain language as well as the buyer’s cooling-off rights are also investigated. An investigation into the influence of the CPA on the common law of sale in South Africa warrants a systematic framework and modus operandi which are: a. an investigation into the historical background of the common law of sale and its principles in the Roman law and Roman-Dutch law; b. a critical analysis of the position where the CPA is not applicable (the common law position); c. an extensive analysis and critical evaluation of the relevant provisions of the CPA and the influence thereof on the common law of sale; d. a comparative analysis of the appropriate provisions in Scotland and Belgium; e. a conclusion of the influence of the CPA on the common law of sale (whether the particular common law of sale principle is confirmed, amended or excluded in terms of the Act); and f. recommendations (taking into account the comparative analysis) regarding the rectification of uncertainties and ambiguities that arose as a result of the investigation. It is also important to remember that the existing principles of the common law of sale will still be applicable for transactions and agreements which fall outside the application of the Act. The golden rule to keep in mind when investigating the influence of the CPA on the common law of sale is to determine which approach and interpretation will be most beneficial to the consumer.