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.
