LU3a — The Contract of Sale (Emptio Venditio)
← 03 - LU3 Law of Contract | 00 - Index
01
Overview
The contract of purchase and sale (emptio venditio) is the most important consensual contract. It is formed by mere consensus on the three essentialia — no delivery or payment is required for a valid contract to exist.
"⚠️ Critical: A valid contract of sale does NOT automatically transfer ownership. Ownership only transfers when *delivery (traditio) takes place on a valid iusta causa* (the contract of sale IS the iusta causa, but delivery must still follow). See: 02a - LU2 Acquisition of Ownership"
02
The Three Essentialia of a Contract of Sale
Contract of sale = consensus on:
1. Nature of the contract (buy/sell)
2. Object of sale
3. Purchase price
03
1. The Object of Sale
Requirements for a valid object of sale:
| Requirement | Meaning | Example of failure |
|---|
| Res in commercio | Susceptible of private ownership — in the commercial world | Stolen goods cannot be owned |
| Certain (certum) | Specific or at least semi-specific | "The best firewood" = void (by kind); "ten young colts from my stable" = valid (semi-specific) |
| Does NOT need to belong to the seller | Res aliena (another's thing) can be sold | Ownership will NOT pass on delivery if seller has no title |
04
2. The Purchase Price
Five requirements:
| Requirement | Latin | Meaning | Example of failure |
|---|
| 1. Price must exist | — | No price = no sale | Agreement to exchange two cows = barter, not sale |
| 2. Must be in money | — | Physical money, not barter | Exchanging goods = barter |
| 3. Must be certain | Certum | Specific or ascertainable | "A reasonable price" = void; "the same as last year" = valid (ascertainable) |
| 4. Must be genuine | Verum | Not a sham; intended to be paid | Selling a farm to daughter for R1 = donation, not sale |
| 5. Must be just | Iustum | Added in post-classical period — reasonable | R500 000 for a banana = unjust (unless it is an artwork) |
05
When Does the Contract Become Perfecta?
A contract of sale is perfecta (complete) when the parties have reached consensus on all three essentialia — even before delivery or payment. Once perfecta:
- - Duties of both parties arise immediately
- - Risk (periculum) passes to the buyer (in Roman law)
06
Duties of the Seller
| Duty | Explanation |
|---|
| Care for the thing | Must care like a bonus paterfamilias (reasonable person) until delivery. Liable for culpa levis in abstracto |
| Deliver vacant possession | Must deliver exclusive, effective control of the thing at the agreed time. If not: buyer can use actio empti |
| Guarantee against eviction (auctoritas) | Must ensure no third party with a stronger right will deprive the buyer of the thing |
| Guarantee against latent defects | Hidden defects (existing at time of sale, not visible on reasonable inspection) — seller must disclose or is liable |
| Act in good faith | Contract governed by bona fides — e.g. cannot sell a horse he knows belongs to another without disclosing this |
Latent defects and the two aedilitian actions
| Action | Effect |
|---|
| Actio redhibitoria | Return the thing and get the purchase price back |
| Actio quanti minoris | Keep the thing but get a reduction in the purchase price |
The buyer could ALSO use the actio empti to claim return of price or reduction for latent defects.
The voetstoots clause
- - Roman-Dutch development allowing sellers to exclude liability for latent defects
- - "Voetstoots" (Dutch) = "push with the foot" = as-is
- - Still valid in modern South African common law
- - BUT limited by the Consumer Protection Act 68 of 2008 — cannot be used against consumers
07
Duties of the Buyer
| Duty | Explanation |
|---|
| Pay the purchase price | At the agreed time; or on delivery if no time agreed. Cannot use actio empti before paying |
| Accept delivery | At agreed time/place; immediately or within reasonable time if not agreed. Seller can force acceptance with actio venditi |
| Reimburse expenses | Reimburse seller for necessary costs incurred between contract and delivery |
| Act in good faith | Bona fides applies to both parties |
08
Good Faith (Bona Fides) — Then and Now
| Period | Status of good faith |
|---|
| Roman law | Central requirement of all consensual contracts — a contract contrary to bona fides was void |
| 1852 Cape Colony | Courts still held that a contract inconsistent with good faith was void |
| Post-English influence | Good faith progressively reduced; "public policy" replaced it as the primary external control |
| By 1907 | Good faith reduced to an "underlying principle" of contract law |
| Today | Public policy (rooted in the Constitution as the "repository of the boni mores") is the main control. Good faith plays a supporting role. Constitutional Court has questioned whether this is sufficient |
09
Modern South African Law — What Survived?
| Roman principle | Status today |
|---|
| Seller's duty to care for the thing like bonus paterfamilias | ✅ Still applies |
| Guarantee against eviction | ✅ Still applies |
| Warranty against latent defects | ✅ Still applies (modified — also regulated by Consumer Protection Act) |
| Duties of the buyer (payment, acceptance, reimbursement) | ✅ Confirmed in modern law |
| Good faith as a requirement | ❌ Reduced to an underlying principle — public policy is dominant |
| Voetstoots clause | ✅ Still valid in common law; limited by Consumer Protection Act |
| Iusta causa + delivery for ownership transfer | ✅ Still applies (see 02a - LU2 Acquisition of Ownership) |
10
Quick Reference: Key Remedies in Sale
| Remedy | Who uses it | When |
|---|
| Actio empti | Buyer | Seller fails to deliver; latent defects; non-performance |
| Actio venditi | Seller | Buyer fails to pay or take delivery |
| Actio redhibitoria | Buyer | Return the defective thing and recover the price |
| Actio quanti minoris | Buyer | Keep the thing; reduce the price for the defect |
| Rei vindicatio | Owner | Reclaim the thing from any possessor |
11
Self-Assessment Questions
- - Why does a valid contract of sale NOT transfer ownership?
- - What is the role of the iusta causa in a sale?
- - List and explain the five requirements for a valid purchase price.
- - What are the seller's duties once the contract is perfecta?
- - What is a voetstoots clause and what is its status today?
- - Explain the two aedilitian actions.
- - What happened to the requirement of good faith in South African law? Is this constitutionally satisfactory?