The influence of the Consumer Protection Act 68 of 2008 on the common law obligations of the seller vis-à-vis risk and duty to take care, eviction, and defects

Abstract

This dissertation considers the possible influence of the Consumer Protection Act 68 of 2008 on the common law obligations of the seller vis-à-vis: 1) risk and duty to take care, 2) eviction and 3) defects. Before one can have a look at the influence of new legislation on the common law, it is necessary to first go backward to look at where it all started in order to understand any possible influence. In the first chapter there is therefore a historical overview of the common law in general as well as the law of contract. Reference is also made to the Roman law perspective as well as the Roman concept of contract; the Roman-Dutch law perspective as well as the Roman-Dutch concept of contract; and the South African law perspective as well as the South African concept of contract. In chapter 2 the common law and the law of contract is discussed in general with reference to concepts such as ownership, law of obligation, and the emptio venditio. Chapter 3 deals with the essence of this dissertation as we look at the common law obligations of the seller and in specific the risk and duty of the seller to take care of the thing sold until it is handed over to the buyer (factors that influence the duty to take care, passing of risk, and passing of risk in sales by way of consignment); the seller‟s warranty against eviction (including the obligations of the buyer when there is a threat of possible eviction); and the seller‟s warranty against latent defects (ex lege warranties, ex contractu warranties, the actio empti and the aedilitian actions). In chapter 4 there is a very short discussion on the influence of the Constitution of South Africa, 1996 in general as well as specifically on the law of contract. Chapter 5 deals with the influence of the Consumer Protection Act 68 of 2008 in general, specifically on the law of contract (why an Act to protect the interests of consumers?) and then the influence on risk and the seller‟s duty to take care of the thing sold (the consumer‟s right to return goods; the supplier‟s obligation to draw potential risk of an unusual character or that the consumer could not reasonably be expected to be aware of or that could result in serious injury or death to the attention of the consumer), the influence on the seller‟s warranty against eviction (the consumer‟s right to assume that the supplier is entitled to sell the goods; sections 44 and 51) and the influence on the seller‟s warranty against latent defects (disclosure of reconditioned or grey market goods; quality of goods). The conclusion follows in chapter 6.