SELLER'S DUTIES AND BUYER'S REMEDIES (2)

118 THE ZIMBABWE LAW JOURNAL

CGr1MERCIAL LAW. OF ZIMBABWE - PURCHASE AND SALE, PART 3:

SELLER'S DUTIES AND BUYER'S REMEDIES (2)

BY

PETER L VOLPE BA(Lond) · MA LLB(Cantab) of Gray's Inn, Barrister

Legal Practitioner, Zimbabwe ~. Senior Lecturer in Law, University of Zimbabwe·

This continues the author's work on the law of purchase and sale in Zimbabwe, earlier parts of which appeared in 198'0 ZimLJ J4 and 162 and 1981 ZimLJ 41. The subject is presented in a manner easily assimilable by students studying by · correspondence or at technical. colleges, who do not have reQdy access to the law reports.

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SELLER'S DUTIES AND BUYER'S REMEDIES 119

4.1

4.2

4.3

4.3.1

4.3.2

4.4

4.5

DEFEcrS

Seller's duty to deliver the thing sold without any defects

Seller's liability in event of defect being patent

.Seller's liaQ.ility in event of defect being latent a. Where he is fraudulent, ie mala fide does

not disclose existence of defect of which he is aware

b. Where he has given express or impli'ed warranty against'existence of latent defects or as to fitness for purpose for which the thing is bought

c. Where. he is the manufacturer of the thing sold or a dealer who publicly professes to have attributes of skill and expert knowledge in relation to that kind of thing

d. Where the aedilitian remedies are available . . Where seller is not liable for latent defects·

a. Where he expressly contracts out of liability ·

b. Where his 'liability ha5 been tacitly excluded as well as by,necessary implication from the circumstances

c. If defect does not exi'st at time of sale d. Where buyer is aware of defect at time of

sale or becomes· so aware and expressly or · impliedly accepts the position

e. Where buyer's remedies have become pre-scribed _

Where seller may request opportunity to remedy defect

Buyer's remedies where seller liable for patent defect

Buyer's remedies where seller liable for latent defect a. Redhibitory relief (actio redhibitoria) if

defect is material, ie refund of price with interest, reimbursement of expenses, and indermity against liabilities in res-pect of the thing sold ·

b. Acstimatorirul relief (actio aestimatoria orquanti minoris) if defect not material, right to redhibitory relief lost', or buyer chooses not to seek it, ie reduction of price ·

c. Consequential damages where seller knowing of, or having reasonable grounds for suspecting, defect has said nothing about it or represented its absence; has given ex- . ·press or implied warranty qgainst existence of latent defects or as to fitness for purpose bought; is the manufacturer-or a

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120

4.6

SEcriON 5

5.1 5.2

SEcriON 6

6 ... 1 6.2

THE ZIMBABWE I.J\W JOURNAL

dealer who publicly professes to have attributes of skill and expert knowledge in ·relation to the kind of thing sold

Buyer may use aedili tian rerredies as ground of defence ·

UNFOUNDED DICTUM ET PROMISSUM

Nature of dictum et promissum Aedilitian rerredy available to buyer when dictum

et promissum unfornded

SELLER'S EXCLUSION OF LIABILITY

Seller may protect himself against liability He loses protection where .fraudulent

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SELLER'S DUTIES AND BUYER'S REMEDIES

sEer ION 4. DEFEcrs

4.1 SelZer's duty to deliver the thing sold without any defeats

I~ is the duty of the seller to make delivery of the -thing sold W:Lthout any defects. Defeats may be patent, 'that is, easily discernible by the buyer at the time of deliver>y (scab on sheep: Muller v Hobbs 4.2 b. below), or latent, that is, not apparent to _the ordinary man even if appal'ent to the expert (efflorescence in bricks: HoZmdene Brickworks (PtyJ Ltd v Roberts Construction Co Ltd 4. 3 c.; a welded crankshaft: Goldblatt v Sweeney 4.3.1 c.; mea,sles in pigs: Zieve v Verster & Co .. 4. 6).

Where the seller delivers the thing sold wjth a defect -

(a) In the event of the defect being patent, the ordinary rules relating to breach of contract by defective perfoi1llance apply.

· (b) In the event of the defect being latent, the seller is liable -

(i) Where he is fraudulent, that is, mala fide does not disclose .to the buyer the existence of a defect. of which he is _aware ;

(ii) Wilere he has given an express or implied warranty against the existence of latent defects or as to fitness for the purpose for which the thing is bought;

(iii) Where he is the manufacturer of the thing sold or a dealer who publicly professes to have attributes of skill and expert knowledge in relatiqn to that kind of thing;

(iv) Where the_ aedilltian remedies are available.

4.2 SelZer's liability in the event of thiJ ·defeat being patent.

These rules apply (Mackeurtan 1972, p 245) -

(a) Whe~ speaifia goods are mentally identified, or unascertained goodf! are appropriq.ted by the seller to the aontraat, and the goods suffer f:room a patent defeat, the seller may be sued for bl'eaah of aontraat by defedtive performance.

Kroomer v Hess & Co 1919 AD 204. K sold IOO!lk:ey nuts to H, knowing that they were for human consumption. H rejected the nuts on delivery and sued for damages; their _evidence showing that the nuts were mouldy, weevily and smelt and were not fit for human consumption. A magistrate granted·absol~tion from the instance and H appealed. The .Transvaal Provincial Division ·reversed the magistrate's decision and awarded H damages. K applied for leave to appeal. HELD, by the Appellate Division, as· the nuts delivered by K were not fit for htmlllll consumption the decision of the Provincial Division was corr_ect and there being no prospect of success on appeal, leave to appeal should be refused. Solomon ACJ said: "The nuts ... were undoubtedly intended for human cailsumption. The evidence is clear that they were

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bought for that purpose to the knowledge of the defendant. Now, when goods are sold for human consunq:>tiori it is an implied condition [tenn] of the contract that they shall be reasonably fit for that purpose

It follows, therefore, that . . . the defendant had failed to car:ry out his contract, and was therefore liable in damages for its breach."

See also Ceda~nt Store v Webster & Co and Mannix & Co v Osborn in 2.1. 3 a. above.

(b) Where the buyer makes an inspection at or before the sale, whiah disclosed or ought to have disclosed a defeat and aaaepts the goods without objection, the seller is not liable (in the G.bsenae of any express or imrlied warranty or fraud), because the buyer by'his aonduat is deemed to have waived his remedies and to have bought· the goods subject to the defeat whiah but for his Zaahes he would have discovered or whiah he did discover but considered of no aonsequenae.

Muller v Hobbs (1904) 21 SC 669. M selected and bought a number of sheep out of H' s flock. Two weeks later a scab inspector examined th~ sheep and found scab arrongst them two months old and ordered M. to have them dipped. M sued H for damages, being the sum expended by him in dipping the sheep. A magistrate found H had no knowledge at the time of sale that the sheep were infected and gave judgment for H. M appealed. HELD, by the Cape Supreme Court, the appeal should be dismissed. De Villiers c.J said: "The disease ... is caused by a minute insect, but the effects are perceptible to the . naked eye, and ca,rmot be regarded as latent. According to the Digest (31.1.3 & 4) [D 21 is wrongly cited as D 31),-where a slave was suffering from itch or scab, the defect being patent, was held not to entitle the purchaser to the redhibitory action [see 4.5 a. below]. A fortiori in the case of sheep selected and bought out of a flock, by the purchaser himself, it would be impossible to hold that on subsequently discovering that they are suffering from scab he would be entitled to claini a· return of part of the pries-. The action,

· however; was for damages on the ground of tht! expense incurred by the plaintiff in dipping all the sheep bought by him from the defendant. In the absence of any guarantee; express or implied, the defendant cannot be held liable for such damages, unless he kneW' that the sheep were suffering from scab and' improperly withheld the infonnatian from the plaintiff;"

Douglas·and Nolan v Ohlsson's Cape Breweries Ltd 1903 TH 424. D sold 0 the lease on certain stands in fuomfontein, together with the buildings and erections thereon and with the liquor licence granted in respect of the premises. D sued for the balance of the purcha5e

·price, but 0 pleaded that the property was warranted to be, and was sold ·as , a property upon which the liquor licence could be exercised but that as 0 were conq1elled to pay the landlords a royalty for permission to use the premises for the sale of liquor· the val~ of the· property had decreased. HEW, by the Witwatersrand High Court, ~ judgment should be given ·for D. Wessels J said: "It. is clear that the whole case . • . depends upon the question whether the fact that

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. the plaintiffs, when they sold the property to the defendants, did not disclose to them that a royalty of EZ was payable to the 01-ners of the township for permission to use the premises for the sale of liquor can be construed into such a defect in the property as would render them liable to the defendants for depreciation in· the value of the property. No fraud has been alleged, nor has any been proved or even suggested. All that we have before us is. the silence of·the platfltiffs that such a royalty was payable ... a lease was sold which clearly provides that no lessee.shall have the right to carry on a liquor business on the premises without the consent of the landlords, and this consent is only given subject to the payment by the lessee of a royalty of £2 per month. It clearly was the duty of the defendants to inquire into the provisions of the lea.Se they '"ere buying and to find out the actual state of affairs. The defect in the propercy was not a latent defect, .but q patent one, and might easily have been discovered by the defendants."·

4.3 Seller's liability in the event of the defect being lato?llt

This arises -

(a) Where the seller 1-s fraudulent, thqt is, male fide itxs not disclose to the buyer the existence of a defect of uh1:ch he is CllJare.

Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846 (AD). \~'hen G had purchased a dilapidated building from I it was unm>are that pari of the building had been proclaimed a national· m:mument. ,I, of .course, had been so advised. I knew the building 1.:as be.ing purchased for redeveloprrent purposes bUt had failed to disclose that part of the bi.rilding had been declared a national monument. Soon after the sale G, having le·amed of the proclamation, consulted the )Jational M:mument Council and was ,permitted to rell'ove the paYt .concerned subject to it being stored and later installed in the foyer of the new building. This put G to considerable expense 1;hich it now clairred from I. The Cape Provincial Division dismissed G's claim and G appealed. HELD, by the Appellate Division allm;ing the appeal, the fact that part of the building had ·been proclaimed a momunent constituted a latent defect; I had deliberate!}· concealeu this fact: there had been a duty on I to disclose it and this deliberate concealrrent constituted fraud. Galgut AJA said: "We have here a case in which the selle·r ·had knowledge of the defect, knew that the de feet . rendered the property unfit for the purpose for 1\'hich it ;.;as bought, knew that the purchaser had no knmdedge of the defect, must have known that the purchaser would not have bought the property if it had knowledge of the defect. Having regard to all the facts there can be no doubt, it was Selige's [seller] duty to disclose the existence of the ena.unbrance. , ~spite this he deliberately concealed the existence of the defect and did so craftily. I am or the opinion-that it has been shm.n that this is a case in l>hich the plainti. ff was deceived by Seiige's silence and that, having regard to the dictc in the authorities cited above, his deliberate concealment consti-tutes fraud in our lm.t'. ·

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124 TiiE ZIMBABWE LAW JOURNAL

Also see the cases in 4. 3.1 a. belo~. A full discussion of frauch.!lent misrepresentation will be found in Volpe 1980 Part z Section z. (b) Where the seller has given an ezpress or implied wa:JTCD1ty

against the existence of _Latent defects o:r as to fitness for _the pu:rpose for which the thing is ._~ought.·

Minister var. Landhou-tegniese Dienste v Scholta 1971 (3) SA 188 (AD). On 4 August 1965 M had purchased a bull from S, a breeder of bulls, for stud purposes. On the ground that 1:he bull was allegedly not fertile M·on 19 August 1968 instituted an action for tonfiTmation of the cancellation of the oral agreement between the parties, and the repayment of the purchase price, basing his action on the breach of an implied consensual warranty that the bull would be fertile. In his plea S admitted that there was an implied tenn that the bull would be suitable for its noTmal use, namely, stud purposes. He . denied that the bull was not fe_rtile. A magistrate's court found that M' s claim was based-on an actio redhibitoria and in terms of the 1943 Prescription Act was prescribed. This decision was confinned on M' s appeal by the· Northern Cape Division. M made a further appeal. HELD, by the- Appellate Division, allowing the appeal, M had not relied upon· a latent-defect and did not claim under the actio redhibitoria; the parties had concluded the agreement on the basis that S had undertaken to deliver a bull suitable for stUd purposes . and _an implied timn to this effect was a term of the agreement; therefore, the plea of prescription had to be set aside.

Bower v Sparks. Young dn.d F~rmers' Meat Industries Ltd 1936 NPD 1. B ran a Onistmas hamper club, the rrembers of which had each received a Christmas hainper containing one ham in return for payments made during the )'ear. S, curers of ham, undertook to supply B with sixty dozen hams for this purpose. Having previously supplied B with hams, S well knew the nature and objects of the scheme, the importance of the hams for this .purpose, and that the inclusion of defective or inferior hams would adversely affect the present and prospective membership of the club. S supplied defective hams which were unfit for human COITSI.Illption and B brought an action for damages. HELD, by the Natal Provincial Division, there was an ~lied warranty by s·that· the hams to· be supplied would be fit for. the above purpose, and B was entitled to recover damages for the consequent fall in

· nembership of his club and the loss of prospective nembers. Feetham JP said:. "The picnic hams having been ordered from the defendant company, as manufacturers of such hams, for the special purpose of being supplied to the members of the Christmas Hamper Club as part . of the contents of the Olristmas hanper to which such inembers were entitled by virtlle of their nembership, and particulars of this purpose having been COI1111UiliCated to the representa:ti ves of the defendant· company before the order was placed, there was an implied warranty by the defendant that the hams to be supplied would be fit ·for that purpose." . ""

Evans and PLOz.Js. v Willis & Co 1923 a>D 496. E and P were pll.Dilbers and sanitary engineers· who had purchased cerrent from W who knew it was to be used by ? and P in their trade. They had asked for a

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particular brand of cenent;. Not having that brand in stock, one \\hich they had previously supplied, W sold to E and P another brand and expressly warranted it to be as good as the brand asked for. In fact. it was not and the works on which it was used cracked and broke and had to be taken up and renewed at a cost of E5 ls 7d which sum E and P now clained from W as damages. . A magistrate allowed an exception to E and P's declaration on the gromd that W was not in law liable. E and P appealed. HELD, by the Cape Provincial Division allowing the appeal, as the damages clained were alleged to have, been· caused. by a defect against \\hich there, was an express warranty and were of a kind which flowed naturally from a breach of that warranty, they may reasonably have been supposed to be within the contel$lation of the parties and were, therefore, recoverable from W. Watenneyer J said: "It is difficult in principle to see any reason why the purchaser who has bought and used an article relying on an express warranty as to its quality and suffered loss of the kind \\hich would naturally be expected to occur if the quality was not what it was represented to be, should not be able to recover his damage." · ·

(c) Where the seUer is the manufacturer of the thing so~d or a dea~er who pub~ic~y professes to have attributes of skiU culd e;cpert knowledge in re~tion to that kind of thing.

Ho~ne Brickworks ·(Pty) Ltd v Roberts Construction Co Ltd 1977 (3) ·SA 670 (AD). R, a firm of building and engineering contractors, bought some 212 000 bricks from H, a manufacturer and seller of bricks. The bricks were to be used in the erection of factoty buildings. It ·was only after R had used all these bricks in building the factoty.that it discovered that a substantial proportion of them were defectiVe, inasmuch as they manifested a condition known as "efflorescence" \\hich caused them to cnunble and decompose. To remedy the position R demolished the walls containing the defective bricks and rebuilt them with bricks obtained from another source. R claimed the cost of doing so, which amomted to some R27 000, from H on the basis that it represented consequential loss suffered by reason of a latent defect in the goods sold. The ,Transvaal Provincial. [!ivision granted judgment in R's favour. H appealed. HELD; by the Appellate Division dismissing the appeal, H had sold R bricks with a latent defect; the demolition of the walls was a natural and foreseeable consequence of. the seller's default; R had acted reasonably in demolishing the brickwork. Corbett ;JA said: "The legal fomdation of respondent's claim is the principle that· a nerchailt \\ho sells goods of his own manufacture or goods in relation .to which he' publicly professes to have attributes of skill and expert knowledge· is· liable to the purchaser for consequential damages caused to the latter by reason of any latent defect in the goods. Ignorance of the defect does not excuse the seller. <Alee it is established that he falls into one of the abovementioned categories, the law irrebuttably attaches this liability to him, mless he has expressly or impliedly contracted out of it . . . . The liability is additional to, and different from'the liability to redhibitorian relief [d. below] which is incurred by any seller of goods fomd to contain a latent defect." ·

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KPoonstad Westel~ke Boe:r>e-Ko-opepatiewe Ve:r>eniging Bpk v Botha.and anothep 1964 .(3) SA 561 .CAD). ·B, kaffir com fanners, sued K, a cooperative society, for damage to B's kaffir corn crop resulting from a latent defect in a pesticide, Metasystox, sold. by K to B for the purpose of spraying the crop for the destruction of li.ce. In its plea K averred, inter alia, that it was neither an artificer nor a manufacturer of the pesticide, it did not have specialised knowledge of the pesticide nor held itself out as a specialist. B successfully applied in the Orange Free State Provincial Division for the striking out of the avennents as being irrelevant. K appealed. HELD, by the Appellate Division, the appeal should be allowed. Holmes JA said: "In my opinion the preponderant judicial view, and which this Court should now approve, is that liability attaches to a merchant seller, who was unaware of the defect, where he publicly pro.fesses to have attributes of skill and expert knowledge in re:iation to the kind of goods sold . . . . Whether a seller falls 'within the category mentioned will be a qi.Jestion of fact and degree, to be decided from all the circumstances of the case. Once it is established that· he does fall within that category, the law.irrebuttably attaches to him theliability in question, save only where he has expressly or by implica" tion contracted out of it. I have only to add that the remedy, from its natljre, is not redhibitorian [d. below)".

(d) where the .aediZitian :mmedies aro available

Holmes JA states in Phame (PtyJ Dtd v Paizes (Section 5 below): "They (the Roman-Dutch authorities) are simple and clear -

(i) If there is a latent defect, at the time of the sal'e ipso faato the aedilitian remedy is available (unless excluded by agreement). The seller's obligation and the buyer's right arise by operation of law, and not by reference to the intention of the parties. It is unnecessary for the buyer to tty to fit his resultant right into the concept of a so-called implied warranty . against such defects. Nor does the buyer have to aver and prove a breach of a tenn of the contract ... "

Milne JP in Crawley v Frank Pepper (PtyJ Ltd (4.3.1 a. below) has thi's to say: "In the light of what I have al reqdy said it appears to me to be correct to say that ...

(2) ,By operation of the .[aedilitian] edicts, as expounded and adopted in our law, into every contract of sale there is imported· a warranty by the seller against such latent defects. Ie ·Wet and Yeats in Kontraktereg & Handelsreg, 3rd ed, at pp 235,' 236, say that this warranty is wrongly referred to as an implied warranty and, no doubt, this is, strictly speaking, correct .. A warranty can properly be said to be implied only in the same way that any other tenn of a contract is implied, ie by necessary implication of the actual intention of the parties ...• But I think that. it may be convenient to continue to refer to it as an implied warranty as long_ as one remembers that it is imported into eac.l-t contract of

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sale, regardless of the actual intention of the parties."

Kerr in The Principles of the Law of Contract; 3rd ed, pp 229-239 and 284, speaks of residual provisions being contractual provisions which the law provides and imposes in the absence of express or implied agreetrent of the parties. "They are most common therefore," he says, "in contracts where the requiretrents of the law are least, as in sale ... " · ·

Full details of the aedilitian remedies (the actio redhibitoria· for the re_tum of the price and the actio aestimatoria ot quanti minoris for its reduction) are·given in 4.5 a. and b. below.

4.3.1 Where the seller is not liable for latent defects

The seller is not liable for latent defects -

I (a) Where he expressly contracts out of the liability .

The most usual way is for the seller to announce that the thing sold is sold voetstoots (as it stands), but the voetstoots clause will not help him if he is fraudulent.

Crowley v Fronk Pepper (PtyJ Ltd 1970 (1) SA 29 {N). F had in tenus of a printed agreement containing a voetstoots clause purchased a house from C and unbelmown to F a latent defect had existed in this property. It appea~d that the ground upon which it had been built a month earlier by C had been filled in with soil and certain decaying matter which, in 1due course, caused cracks to appear in the walls. C had failed to inform F of this defect. F claitred that the value of the propertY was R700 less than what it had paid. F accordingly claimed this amount. C had pleaded that the property had been sold voetstoots and with all its faults .. A magistrate's court had given judgment: for F, having found that a ·latent defect had existed, C !mew about it at th~ time of the sale and F had only become aware th~reof when the walls cracked. C appealed. HELD, by the' Natal Provincial Division dismissing the appeal, 1.tlether F' s case was based on delict or as being by way of an actio quanti minoris, F was entitled to the amount claire d. Milne JP said:· " ... it appears to me to be correct to say that: ·

(1)

(2)

( 3)

A seller is obliged to disclose all material latent .defects which unfit or partially unfit the res vend1:ta ·for the purpose for which it was intended to be used ...

By operation of the [aedilitian] edicts, as expmmded and adopted in our law, into every contract of sale there is imported a warranty by the seller against such latent defects ...

Although a seller may contract out of his obligation to disclose and out of the statutorily imported warranty against latent defects the existence of which he does not khow at the time of the 5llle, if he pUiports to contract out of his obligation to disclose and of the implied

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128 THE ZIMBABWE LAW JOU~AL

warranty against materi-al laten:t defects unfitting, o:f partially unfitting, the res- vendita for the purpose for which it is sold, and those defects are present to his mind at the tire of the sale, but he rema:ins silent about them although he must know that to disclose their existence would cause a prospective buyer either not to purchase at all or to insist on a lower price than he otheTWise would pay, he will ... be given the 'replication of fraud' ... "

Vander MerWe v Culhane 1952 (3) SA 42 (T). V sold voetatoota to C a pioperty which he knew to be. :infested with wood-borer and was sued by C :in a magistrate's court for damages. The magistrate gave judgment in C' s fa\iour. V appealed. HELD, by the ,Transvaal Provincial Division dismissing the appeal, on the facts the magistrate had correctly fol.Dld that V, who had denied any knowledge of the defect, was aware of the defect; V's failure to disclose its presence wa.S a fraud on C. Maritz JP said: "If the ·language used by the learned Judges in the cases quoted is paraphrased, in my op:inion it comes down to this: 'A, seller is not liable for defects if the sale is voetstoots l.Dlless he was aware of the defects and failed to disclose their presence to· the purchaser; . his failure to disclose their presence is prima facie. a fraudulent act on his part' ". "'

Bosman Bros v Van Niekerk 1928 CPD 67. ltrl auctioneer sold certain pigs belonging to V by public auction to B. In tenns of the.' conditions of sale' the pigs were sold voetstoots. A number of pigs were found to. be latently defective and B sued V·for damages. A magistrate gave judgJrent :in V' s favour and B appealed .. HELD, by the Cape Provincial Division, the condition inser:ted by the auction~

· eer that the pigs were being sold voetstoota enured for the benefit of the seller and in the absence of proof that the seller was aware of the defect_ at the time of the sale the claim for damages by the purchaser should be dismissed. -

Hadley v Savory 1916 TPD 385. H bought· a colt at a public auction of bloodstock from S, the sale being·voetatoota. To the.knowledge of S the colt had previously tun into a wire fence and seriously injured his-shoulders·; so much so that the colt went lame after he had trotted for twenty paces and was thoroughly unfit for rac:ing purposes. Of these facts not a word was said at the sale. H sued S for the cancellation of "the sale and the return of the purchase price. A magistrate gave absolution from the instance. H appealed. HELD, by the Transvaal. Provincial Division allow:ing the appeal, the seller was not protected by the fact that he purported to sell the colt voetstoota; the purchaser could repudiate within a reasonable tire of the defect coming to his knO}"ledge.

(b) Where· the seller's liability has been tacitly excluded as weli as by neaessary implication from the airaumstanaes

J K Jaakson (PvtJ Ltd v Salisbury Family _Health Studio (PvtJ Ltd ·1974 (2) SA 619 (RAD). S had instructed J's principal, Sanitex, to

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SELLER'S DUTIES AND BuYER'S REMEDIES 129

manufacture 24 plastic sliiiVlling suits for S 1 s health centre. ·It was agreed that Sanitex would make exact copies of a sample American suit, using heavy plastic material. It was later found that there was insufficient heavy plastic material and, as S1 s managing director was "in a hurry", he insisted that a sample be made up using a lighter plastic material. The sample was made up and, without subjecting it to an actual test by use in the health centre, S instructed Sani tex to complete the order for 24 suits. After completion of the order, it was found that the suits were unsuitable in that they were unable to withstand the stresses and strains to ~ich the suits were subjected in the course of sliiiVlling treatments. The evidence revealed it was the plastic material. which rendered the suits unsuitable for the purpose for ~ich they were intended, and it was this defect upon ~ich S relied in his defence to J's claim for the price of goods sold and delivered to S. A magistrate dismissed the claim and J appealed. HELD, by the Rhodesia Appellate Division allowing the appeal, Sail.itex in making the suits was not called upon to exercise its am ju~gment, expertise or initiative in the design of the suit but simply, in effect, to act on S 1 s instructions; further, there w~ no evidence that, in making Up the suits, Sani tex failed to use due care and diligence; the failure of the suits was due to the fact that the material used was not stTong enough; further, it was inconceivable that Sanitex, directed in the matter of the design of the suit, ordered to· use lighter material, ignorant in the main of the exact stresses and strains the slimming trea~nt would involve, should be taken, nevertheless, to have accepted liability for defects arising from the design of the suit or from the material used or a cOJl!bil'!ation of both; therefore, the implied warranty against latent defects ( 4. 3 d .. above) and the manufacturer• s or merchant 1 s warranty (4.3 c.) had been tacitly excluded as well as by necessary implication arising out of the surrounding circumstances. Macdonald ACJ said: ". . . the cases in ~ich the warranty is excluded may be divided into two classes. The first class comprises those cases where the exclusion arises from the contract itself as alleged in the declaration. I-f a plaintiff relying on the warranty averred such a contract the defendant could except successfully because ex hypothesi he could contend that the warranty was excluded by the contract itself [a. above]. The second class comprises those cases where the exclusion arises· not from the contract _itself as alleged in the declaration but from the facts of the case on which the defendant relies. Those facts would properly comprise the tenns, the subject matter and the nature of the contract: the circumstances surrounding its fonnation, the position and means of lmowledge of the parties, the nature of the defect and any 'other-facts relevant to the question o~ exclusion.' "

(c) If the defeat does not eXist at the time of the sale

The onus r~· on the buyer to prove that the defect existed at the ti.Jre of the sale. The fact that a defect" is discovered shortly after the sale is one of the circumstances from which· an inference, not in any way conclusive.,. may be drawn as to the existence of the defect at the time of the sale; the reverse inference is drawn if the defect is . discovered 'a considerable time after the sale. Where the defect did not exist·at the time of the·sale the ordinary rules as to the risk

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of the thing sold apply (see Part 2 Section 1 above).

Seboko v SoU 1949 (3) SA 337 (T).. Seboko bought a cow from Soll. He took delivery of the cow which appeared to be in good health. A few days later the. cow sickened and in an hour was dead. - Seboko claimed rescission of the sale. Soll col.Ulterclaimed for the balance of the purchase pr1ce. ·A magistrate granted absolution from the instance in Seboko' s claim and gave judgment in Soll' s f.!!_vour on the col.Ulterclaim. Seboko appealed. HELD, by the Transvaal Provincial Divisiqn, the appeal should be dismissed. Ramsbottom J said: "In my opinion the onus of proving that the defect existed at the tire of the sale is on the buyer . . . . The fact that a defect in the article or ariimal purchased is discovered shortly after the sale is one of .the circtmJStances from ldlich an inference may be drawn that the defect existed at the time of the sale; it has no greater efficacy. If at the ·close of the case there is no balance of probability in favour of the buyer, he must fail .. . . The veterinary evidence is that the probability is that she becarre infected two or three days before her death; the period of. incubation may have been , two days or it may have been more. There. is therefore no balance of probability in favour of the plaintiff's case."

Norton v Johnston 1930 SR 93. N _purchased a second-hand car on an express warranty by J that it was in sound mechanical condition and good running order. Before purchase, on a trial rl.Ul, N fol.Uld the car to rl.Ul noisy and hot. J stated this would be rere~ed when the car was overllauled, and agreed to ovemaul the car thoroughly and paint it. After deli very N fotin.d the tappets very noisy but was told by J that the noise would wear off. During a col.Ultry rl.Ul when about sixteen miles had been covered, N fol.Uld not only that the car ran noisily but also overheated unduly. An expert found extensive defects. N sued for a reduction of E90 in the price by reason of certain latent defects or E90 damages being the amount it had cost him to remedy the defects. HELD, by the High Court of Southern Rhodesia, an express warranty had been given by the seller that the car was in sound mechanical condition and· good running order; the defects complained of must be presumed to have existed at the tire of sale as they manifested themselves very shortly afterward.<; arid

·there was nothing in the use of the car by N, after he bought it, which could account for the defective condition of· the crankshaft journal ldlieh was the really serious defect rendering the car unfit for ordinary use (all .the journals of the crankshaft were worn, one journal being nine-thousandths oval).

Jaaobs v RossoUIJ) 1922 CPD 104. J sold ·a cow to R with a warranty that,_ when she calved, she would yield twenty bottles of milk a day. The cow calved fourteen months after the sale, and R then found that on accol.Ult of a defective udder she gave practically no milk at all. No evi'dence was led on either side as to ldlen the· defect in the udder supervened. R claimed the return of ElO and the horse he had given in ,part exChange and tendered return of the cow. A magistrate gave judgment in R' s favour. J appealed. HELD, by the Cape Provincial Division allowing the appeal, in view of the lapse of time between the date of the sale and the discovery of. the defect there was a

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prest.U11ption that the defect did not exist at the date of the sale and, no evidence having been led by R to rebut the prest.U11ption, the judgment must be altered to absolution from the instance.

· (d) Where the buyer is aware of the defeat at the time of the _sale or beaomes so aware subsequently and expressly or impliedly aaaepts the position.

The buyer is taken to have waived his rights against the seller and . is, in effect, in-the same position as the buyer who accepts delivery of a patently defective thing (4.2 b .. above).

Aaaeptanae is _implied where the buyer, after disaovery of the defeat, either aontinues to use the thing or pays the purahase priae. The rule is stated by Searle J :in Goldblatt v Sweeney (beloW-) as follows: ''Now I cannot help thinking that when a person who has bought a machine such as a motor; car is made fully aware of a latent defect, if he thereafter deals with the machine as though it were his own, the onus is at all events on him clearly to show the Court . . . that he did not intend to accept the car when he thus acted."

Waiver of rights; however, aan only be implied if the usage or payment is without p1'0te8t. In Vorster B!'Os v Louw (below) De Villiers JP says: "The purchaser is strictly within his rights if, instead of rejecting the. ma,chinery there and then, he brings the defects. to the notice of the vendor; and if the vendor shows an inclination to meet him, he is entitled to rely upon the representations of the vendor that he .will put the machinery in order. ·And if the purchaser goes no . further than this, and does not by his words or by his actions accept the goods as his own in performance of the contract, or waives his rights tmder the contract' there is no principle in our law, in my opinion, which will bar his remedy

Although_ the plaintiffs for some time used the machinery in their business, I am of opinion that,_ looking at their whole course of conduct, they cannot be held to have waived their rights to :insist upon perfonnance of his obligations by the vendor. Nor does the fact that the plaintiffs paid several instalments of the purchase price tD'l.der the circtUllStances bar this remedy."

Goldblatt. v SWeeney 1918 CPD 320. S bought a second-hand car from G, became aware after delivery that the crankshaft had been welded, but thereafter had the car thoroughly overhauled. S brought an action to recover the purchase-price and damages. A magistrate gave judgment for S and G appealed. HELD, by the Cape Provincial Division, the appeal should be 'allowed; Searle J said: "Upon the whole I consider that we ought to come to the conclusion that the plaintiff is debarred by his conduct in dealing with the car and having it repaired generally, after he knew of the latent defect, froin claiming restitutio in integrwn ... the judgment nrust be altered in to one of absolution from the instance."

Vorster Bros v Louw 1910 TPD 1099. In July 1909 V purchased from L ·an engine, boiler and mill, to be supplied and erected in good working order. L erected the machinery in Septerrber, but V alleged

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that it was never handed over in good working order. From September 1909 to April 1910 V frequently called upon L to put the machinery into proper working order, but L failed to do so. V gave notice of cancellation ~d claired damages and a .reftmd of what had been paid. HELD, by the Transvaal Provincial Division, a purchaser's right to rescind a sale on the ground of a latent defect was not barred because he had pai'd portion of the price and used the machinery in his_ business after discovering. the defect, where he acted in the expectation that the seller would remedy the defect; further, only the engine had been proved to have been defective and, since the contract was not an indivisible one, V was only entitled to rescission in respect of the engine.

Nathanson &· Sim v J & E Hall Ltd 1908 TS 167. H sold N and under-• took to instal in working order on N' s property an ice-making plant

of a guaranteed producing capaCity. During a test made after installation the machine did not produce the guaranteed quantity of ice, and H agreed· to effect certain alterations which he- thought would remedy the defect. Upon completion of such alterations H, after attending. to certain general complaints not relating to the producing capacity of the plant, notified N .by letter that the plant was complete and the contract fully performed~ N did not reply; but without making a further· test paid the balance of the purchase price, Which he had held over pending the alterations, and· continued working· the machine-. t-bre than eighteen months afterwards N, alleging tqat the machine was not according to warranty, siied H for damages arising from loss of profits. In '!;he Witwatersrand High Court N failed upon six of the eight items of damage claimed and appealed. HELD, by the Transvaal Supreme Court dismissing the· appeal, N had accepted the pl~t with knowledge of the facts and was therefore not entitled to · succeed. . · ·

. (e) Where the buye1'' s remedies have become prescl'ibed

The residual period of .prescription contained in s 14 of the Prescription Act, No 31 of 1975, is three years and applies to all the remedies of the buyer, including· the aedilitian remedies. For

·full details of the Prescription Act see Volpe 1980 Part 4 Section 4.4.

4.3.2 When selle1' may :eequesi oppo1'tunity to :eemedy defect

Whi Ze the buye1' who proposes to make use of his zoight to set aside the .sale is not o1'dina1'ily obliged to affo1'd the selle1' an opportunity to remeay the defect, the selle1' maY be entitled to such an oppo1'tunity if he has unde1'taken to manufactu:ee an al'ticle to the specifications _of the buy~!',

Shiels v Ministe1' of Health 1974 (3) SA 276 (RAn). t-DH had obtained judgment in a magistrate's court for the price of an artificial leg which had been manufactured for S at a government institution. In an appeal S contended that the evidence disqosed that the leg did not fit and was completely unsatisfactory and, therefore, that he had been entitled to refuse payment. It appeared from the evidence,

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however, that, though S had spent s01re four days at the institution being fitted with and trying out the new leg, after the leg had been finished off and sent to him S had nerely tried, the leg for one or two days, found it to be quite unsuitable and retu:r,ned it to the institution. HELD, by the Rhodesia Appellate Division dismissing S' s appeal, a reasonable opportunity had not been furnished to MJH' s skilled craftsman, after the completed article had been sent to S, to' have the article back and to make any necessary adjustments in order to make, it fit, and, until S had afforded that opportunity, he could not resist payrrent of the acco\IDt. Lewis AJP said: "The

·only questi<n which is of real issue now in this case is whether· the appellant was entitled si.IIIDIIarily to reject this leg after a trial of a day or two days and refuse to pay the account without affording the respondent the opportunity of so adjusting the leg ~ to make it fit and to make it suitable for the appellant. On this point the law seems to be well established. In the case of Wessels v Kemp 1921 OPD 58, De Villiers JP, following a decision of the.Cape Suprene Court in Theunissen v Bums (1904) 21 SC 421, dealing with almost identical facts, held that where a person has ordered three suits from a tailor and had been fitted by the tailor, had received the suits when finally made up 'by the tailor, but had conq>lained that they did not fit and refused to pay the bill, the tailor was entitled to a reasonable opportunity to take the suits back and make them.fit. As the appellant in that case failed to afford the tailor that opportunity, h~ could not escape liability for the tailor's account and accordingly his .appeal was dismissed: The sane principle was applied in the Eastern Districts Local Division in the case of Kruger v BoUman 1933 (1) PH A3. That case involved a contract for the fitting and supply of a set of artificial teeth. The teeth were finished off and sent to the custoner who refused to pay the bill because they did not fit properly. The extract of the judgment is a very short one. Pittman and Gutsche JJ held:

'Unles·s and \IDtil responderit had been given an_ opportunity of remodelling the set, his claim an the contract could not be resisted. '

· Now clearly the principle established in those cases must apply to a contract such as this involving the highly technical task of constructing an artifical leg and making it fit, particularly in the CI!Se of the appellant who; on his. own admission, is. a di.fficult custoner because, unfortunately, he has a very short s~. Mr Andrew sought to argue that a reasonable opportunity had been afforded to the respondent to put. the leg right at the fitting stage, which was a prolonged period. I am unable to agree with this submission. _It is quite clear from these cases that a reasonable opportunity must be afforded after the completed article has been despatched to the custOJrer. The skilled craftsman is entitled, in those cirClDliStances,. to have the article back and to make any necessary adjus~nts in order to make it fit, and, \IDtil he is afforiied that opportunity, the cust01rer cannot resist the paynent of the account." ·

Bola v Thurston & Co 1908 TS 158. T, \IDder a hire-purchase agreement, sold two second-hand billiard tables complete to.H, to be delivered

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and fixed in his billiard room. When the tables were deliVered,. one of them was found to be defective in that two of the ·original slates had been replaced by slates of a different thickness. When H refused to allow T to erect the defective table, T offered to provide a new set of slates and to remedy the defects. H refused T's offer. T sued for damages for breach of the hire-purchase agreement. A magistrate gave judgment for T and H appealed. HELD, by the Transvaal Supreme Court allowing the appeal, T was bound to· deliver and fix second-hand tables in good order, and H was justified in refusing to allow him to erect a ·table structurally defective, although T offered to repair it; further, the contract was

. indivisible and H was entitled to repudiate the whole of it and claim damages for· the loss of profits sustained before he could obtain other tables. Wessels J said: "I do not think there is anything in our law which compels a. purchaser, who has made a con-· tract to purchase a particular article, to allow the seller to put that article. in a· state of repair after the date of the contract. It is the duty of the·seller to deliver the ·very.article which was

. bought and he. cannot be heard to say, 'The article I delivered to · you is not the article that you bought, but if you will allow me to

tinker at it for a day or two I will make an at:ticle similar to that bought. r "

4. 4 Buile:r's remedies where set'Le:r 'Liable for patent defeat

Where the seller is liable for a.patent defect (4.2 a. above) -

(a) In saLes of speaifia goods whiah were mentally identified, if the defeat is material the buyer may refuse delivery or, if not, be limited ·to a_aZaim for damages.

(b) In saLes of unasaertained goods, the buyer may refuse delivery, whether the defeat is material or not, beaause he may refuse to identify the goods as the aorporeal supjeat-matter of the aontraat.

(c) If the buyer is entitLed to. refuse delivery and does so, his remedies are the same as those upon a non-delivery in 2.2.1 above ..

Gliak & Co v Gerber 1926 OPD 82. G had sold to G & Co certain mealies lying on certain lands .and had undertaken to do whatever was necessary to diy ·them and deliver them when dry. G sued G & Co in a magistrate's court for the purchase price. of the mealies. G & Co set up the defence that G had trucked the mealies while they were danp. The magistrate gave judgment for G and G & Co appealed. HELD, by the Orange Free St{lte Provincial Division, the appeal should be allowed. 12 Villiers JP said: "Now, in the present case, we have a sale of an intenoodiate nature, viz. a. contract by which specific goods are sold, but a duty is inposed on t;he seller of doin~ some act in relation to the goods and of bringing the goods into a certain state before delivery. In such a case the rule of ~daimont Stores v Webster & Co must clearly apply. The seller must show that he has 'perfonood his part of the contract', viz. that he has dane

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·the necessary ~acts and brought the goods into the stipulated condition ... Gerber did not discharge the onus of proving that he had dried the mealies before loading them; He cannot, therefore, recover ......

See also Kroomer v Hess & Co in 4. 2 a. ab"Ove and Cedannont Sto:res v Webster & Co and Mannix & Co v Osborn in 2 .1. 3 a. above.

4.5 Buyer's :remedies whe:re seZZer Ziable for latent defeat

Where the seller is liable for a latent defect (4.3 above), .the buyer may obtain - •

(a) Redhibitoi'!J relief (the 'actio :redhibitoi'ia) if the defeat .is material (a reasonable man with lmowledge of the defect .would not have bought the thing sold) , whi'ah consists of a :refund of the purar.ase price with interest and a-reimbursement of aZZ expenses usefully and necessarily ·inaurred by him, and an indemnity agg_inst any ZiabiZities he has properly undertaken, in respect of the thing sold. The buyer must notify the seller of the defeat and offer to return the thing soLd with its accessories and any fruits and profits he has derived from it, unless he is willing to take the latter in Zieu of in.terest ..

The test of materiality was stated in Dibley v Furter (below) by Van Zyl J as follows: "I am therefore of opinion that redhibitory defects are those which either destroy or impair the usefulness of the thing sold for the purpose for which it has been sold or for which- it :i:s COIJI!JK)nly used; that the defect nrust be material and that the test whether the defect·has destroyed or impaired the usefulness of the thing sold is an objective one, ie that the defect has destroyed or impaired it for every one and not just the particular purchaser; and lastly, that the defect nrust attach to the thing sold."

Dibky v Furter 1951 (4) SA 75 (C). In an action by D claiming the rescission of a contract of sale of a fann, '1:/hich was to be used as such and for residential purposes, on the ·grotmd that there existed on a portion of the ground· a graveyard, the court found on the evidence that at the tiroo of the sale the seller F lmew of the existence of a certain number of graves on the property and that he had fraudulently concealed .the presence ·of the latent defect

"from D. HELD, by the Cape Provincial Division, the evidence did not show that the usefulness of the property had been materially impaired: accordingly, as D had not established that the graves were a redhibitory defect, he was not entitled to aedilitian relief; however, in regard to the alternative cause of action, namely fraud, D was entitled to restitution.

Cases illustrating the rules of redhibitory relief are given below -

Kirsten v Nitand 1920 EDL 87. N, after twice trying K's draught

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horse, on both of which occasions it pUlled satisfactorily, stat~d that he would take the horse, as K had guaranteed it a good, staunch, reliable draught horse. It afterwards turned out to be a "sticking'' horse, and N returned it. There was evidence that this fault only manifested itself inte1111ittently. A magistrate gave judgroont in N' s favour and K appealed. HELD, by the Eastern Districts local DiVision dismissing the appeal, the magistrate's judgment for a reftmd of the price of the horse was right; further, _the magistrate had rightly given jud~t also for damages for the keep of the horsE by N up to the date of judgrilmt and not rrerely up to the date of sUillllOllS; further, the interest on the purchase price included in his judgment at 10 percent should be reduced to the legal rate of 6 per cent.

Seggie v Phil.ip Bros 1915 CPD 292. S ordered from P, who were sellers of agricultural machinery, a steam tractor in accordance. with a certain specification. P were not the manufacturers of .the tractor, and S was. aware that it. would have to be imported and that P would not see it before delivery. P, who we~ appointed agents by the manufacturers, were supplied with the tractors by trem at English prices, and P and not their customers were responsible for the purchase price, P hoWever agreeing not to charge their custorrers 100re !}~an a certain price. The tractor supplied to S was not wren delivered in a proper merchantable condition and capable of doing . the work which the specification· stated it would do. S brought an action for the cancellation of the contract of sale and damages. HELD, by the Cape Provincial Division, the relations between the manufacture is and· P were those of purchaser and seller and riot of principal and agent; further, S was entitled to a reftmd of the purchase price (less the aiOOunt of deterioration caused by his fault) together with interest ori the pur~ase price from the date of paynent and the necessary expenses incurred . by him on account of the sale; further P were not liable to pay damages in respect of loss of P!<>fit

Reed Bro; v Bosah ·1914 TPD 578. In this case, the facts of which are given in Part 2 Section 4.7 c. above,·De Villiers JP said: "· .. a purchaser is entitled to claim rescission of the contract if the defects are of such a nature as to render the article unfit for the pullJOse for which it was bought, or that the purchaser would not have bought if he had known of them. By this I do not understand that a Court of Law is-necessarily bound to accept a plaintiff's

- declaration that he would not have bought had he known of the defects but the Court has to decide upon t!le evidence as a whole, having regard to the purposes for which the plaintiff bought an!l the serious ness of the defects, whether he would have bought if he had known of the defects."

Where the saZ.e comprises a11umber of artial.es _and the defeat appea1'8 in one o:r more of them, ,the redhibitory rel.ief to which the buyer is entitZ.ed is partial. and extends cmZ.y to the affected artial.es (Vorstez Bros v LoUJJ in 4.3.1 d. above), unZ.ess the.sal.e may properZ.y be regarded as cme fo:r the ai>tial.es as a whoZ.e (CoZ.Z.en v Ri.et;fantein Engineering Works below)

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CoUen v Rietfontein Engineering Works 1948 (1) SA 413 (AD). R sued C for E42 12s 6d, the balance of the purchase price, and £231. 19s 7d, the cost of erecting a pump alleged to have been sold by R to C. C pleaded that there was an indi;visible contract for the supply of a plDllp and a Fairbanks ~brse engine and that he had justifiably cancelled the contract because R had failed to supply the engine within a reasonable time. C counterClaimed for repayrent ·of. the· sum of ElSO paid on account and tendered to re-deliver the plDllp to R. R ·had in fact supplied a different type of engine which proved unsatisfactory. A magistrate gave judgment in favour of C. R appealed to the 'Griqualand West Local Division 1vhich reversed the magistrate's decision. C appealed. HELD, by the Appellate Division allowing the appeal, on the further correspondence between the parties, the original contract had been modified to the extent that C agreed to accept a suitable engine other than a Fairbanks Morse engine; as the plDllp and engine were sold as a unity C was entitled on R's failure. to supply a satisfactory pump to repudiate the whole contract; D's advertising the pump for s.ale before finally repudiating the contract did not amount to a waiver of his rights·to claim redhibition, as it was not proved that he had full Jmewledge of_his rights. Centlivres JA said: ". . . there can be no doubt that if the Court is satisfied that several articles were sold and bought as a unity, then the redhibitory action )"Ould lie in respect of all the articles· if the vendor failed to implement his contract in respect of one of the articles."

When the thing sold may be divided into the principal thing and its accessories, a defect in the principal thing warranting redhibitO!'lJ relief extends to the return also of the accesso1'1:es, but ,:f the defect is in the accesso1>ies then only they can be returned (Mack~urtan 1972 p 255).

The buyer loses his right to redhibitory relief where, without knowledge of the defect, the articZ-8 has been so treated or used by

-him as to be incapable of re_de livery as the artie le purchased or at an, it has been destroyed or material'/.y damaged by the negligence of himseLf or those for whose acts he is legall-y responsible, he fails to discover the defect and to offer to 'return the article within a reasonabLe time after the defect is 01• s,hould lzave been perceived, .with knowledge of ihe .defect he· exercises unequivocal acts of ownership over the article; but not when the dest:ruction of the article is attributable to the ~I'!f defect complained-of', it has perished casu fortuito (unavoidable accident), or it has, due to the defect, been wasted in the course of its no:rma7. 11se by the buyer. ·

. -HaU-Themzotank Natal (Ptu) Ltd v Ha!'Clman' 1968 (4) 818 (D). HTN sued for services rendered and materials S).!pplied 'in erecting a refrigeration plant on H' s fishing v~ssel. ·H pleaded that the. contract ''as not properly performed by H1N, altemati vely that he had been induced to enter into it by HlN's fraudulent misrepresentation and that he was. accordingly entitled to rescind the contr~ct, lvhich he did. He tendered return of what materials he h~d in his possession averring that he was prevented from returning the

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balance. through aasus fortuitus, as the vessel had sunk during a gale. H1N excepted to ·the plea on the ground that p1uper restitution was not tendered. HELD, by the Dutban and Coast Local Division dismissing the exception, H' s inability to make full re~titution- was. no bar to his right to rescind the contract and claim a refund of

· what he had paid thereunder; H was not un<Jer. any obligation to cOJiJpensate HIN for what had been lost. Henning J said: "It !'leems to me that, depending on the circi.BnStances, a purchaser does l.ot necessarily lose his right to redhibitory_relief because of h~s inability to make exact restitution, or to make restitution at all."

Afriaan Organia' Fertilizers and Associated Industries Ltd v Sieling 1949 (2) SA 131 (\'/) . A sued S for payment of the balance cif the purchase price in respect of certain Karoo kraal manure sold to S. S filed a claim in reconvention claiming a refund of the amomt paid, averring that the manure, which A knew was to be used for a_ particular purpose was not of the kind required and was mfit for the purpose for whidi it was purchased; that A was a dealer in Karoo manure and 'that it was an implied tenn of the contract that the manure should be free from salt, a substance hannful in fertilizers used for the purpose for which S required the manure; that, as he had used a large quantity of the manure, he was unable to tender the quantity purchased but tendered the return of the unused quantity. A excepted to the claim in reconvention as disclosing no cause of action in that, as S was making a claim of restitutio in integrum and the manure had a commercial value, he should have tendered the restoration of· all the manure against a refund of the amomt paid in respect of the purchase price. HELD, by the Witwatersrand Local Division dismissing the exception, as a quantity of the article had perished in the course of its nonnal use to which the seller knew it was being applied, the purchaser was entitled to recover the aJIX)llllt claimed without restoring the used manure. Price J said: " ... it is ..conceded by [colDlSel for the plaintiff] that where the goods have no market value, and where it is dua to the defect itself that' the goods have perished, the buyer can recover the price he has paid without restoring the goods ... ·. I can see no difference in principle between the case where the article perishes through the defect and the case where the article is wasted in the ordinary course, because of the defect." -

_Marks Ltd v Laughton l920 AD 12. L purchased from M a large quantity of eggs and in tenns of a written docunent mdertook all responsibility for their condition from the tire of purchase and accepted them as they stood. L, on attellq)ting to dispose of the eggs, discovered after expert tests had been made that the bulk of them were unfit for human consumption and thereupon ~onsented to their destruetion by the local authority. -In an action by L claiming a rescission of the contract and damages on the ground of fraudulent mis-representations alleged to have been made by M which had induced the contract, the jury retuined a general verdict for L and the Cape Provincial Division entered judgrent accordingly. M appealed. HEW, by the Appellate Division, the appeal should be dismissed. Innes CJ said: "No doubt the general rule of law :is that when a contract is set aside, even on the gromd of fraud, the person

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seeking relief nrust tender to restore what he has obtained under the contract, so that both parties may be replaced in their original positions. That rille however.cannot apply where after delivery but without any fault on the part of the purchaser the subject matter of a contract of sale has perished owing to the very defect .complained of."·

SA ·Oiz & Fat Industries Ltd v Park Rynie iihaUng Co Ltd 1916 AD 400. S bought from P certain oil which they required for soap making purposes. The oil was delivered and most of the purchase price paid. In an action for P to recover the balance of the price S denied liability and claimed relief in reconvention, alleging that they had contracted to buy No 3. 1Yhale oil and that the oil after delivery was found not to be No 3 but a mixture of 1Yhale oil and spenn oil which contained a large quantity of unsaponifiable matter. Prior to the sale S had taken samples of the oil and analysed them to ascertain the percentage of free fatty acids and glycerine but not to detect the presence of spenn oil. Part of the oil, which as a fact was a mixture of whale oil and spenn oil, after delivery was thrown into a tank when the whale'oil cons_tituents being heavier than the sperm sank· down and ·were tapped and used by S for soap~making. Of the balance one portion was partially treated whilst the other portion was mixed with other substances 'in anticipation of treatment. The portion partially treated was found so tJ115atisfactory that a special test was made and the presence of sperm oil detected. \Oil of the same kind had been purchased by S from P in the previous year and used for soap-making with unsatisfactory results but without coJilllaint. The Durban and Coast Local Division gave judgment for P. S appealed. HELD, by the Appellate Division allowing the appeal, No 3 whale oil denoted for tra.de purposes the third grade of oil obtained from whales other than spenn whales and. the oil supplied by. P was not No 3 whale oil; the oil supplied was described by P as No 3 whale oil and S, who in all the circumstances of the case were justified in relying on the description, bought it as such; as the portion of the oil which was tapped and used by S was substantially whale oil, S were not entitled to claim damages for loss of profit in respect thereto; as to the balance of the oil, since the parties could not be relegated to their original positions no redhibitory decree could be granted, but S were entitled to relief under the aatio quanti minoris and the measure of relief should be the difference between . the purchase price ana the actual value of the oil supplied.

Truter v Dunn 1905 ORC 115. T advertised two motor cars for sale, ·guaranteeing them in good condition. On 24 December 1904 D, relying· on the guarantee, bought one of the cars for El25. The same afternoon T took D out in the car to explain its working. The car did not work satisfactorily but T explained that this was due to the petrol being very old. ·On 29 Decerrber D complained further abour the car toT, who then said the fault lay in the carburettor which he attended to. On this occasion D paid T E45 and gave him a postdated cheqw for ESO, the balance .of the purchase price. The car gave 100re trouble and in the beginning of January 1905, when D went to De1fetsdorp in the car he experienced a great deal of difficulty

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140 THE ZIMBABWE lAW JOURNAL

with it. On his return he examined the car thoroughly and discovered a serious defect :in the gearbox. He then took the. car to a repair· shop and had a new gear wheel put :in. When the post-dated cheque f~ll due T on presenting it fomd 'that payrrent had been stopped. He now sued D on the cheque. D pleaded that the car did not answer to the guarantee owing to a number of serieus' defects which rendered the car of no value to him; he therefore claimed that the sale should be rescinded and the part purchase price already paid by him reftmded. The court ·fomd that at the time of the sale there were at least two defects in the gearbox, for either of which D would have been entitled to repudiate the contract. HELD, by the Orange. River -Colony High Cour:t, upon discovering the 'one defect D was· put upon examination, and before effecting any repairs should have thoroughly inspected the car; by having the new gear wheel put in D had accepted the car subject to all defects and could therefore not succeed :in the actio 'redhibitoria; further, the actio quanti minoris was nevertheless still open to D, who could therefore claim that the purchase pri<;:e be diminished; :in so far as the· car was at the time of the sale, owing to lat~t defects, of less value than it was represented to-be. ·

(b) Aestimatorian relief (the actio aestimatoria or quanti minoris)· if the defect is not matel"i.q'L, the right to redhibitory re~ief · has been 'Lost, or th~ buyer though entitled to redhibitory relief chooses not to seek it, which gives a redUction of the purchase price where the 'Latent defect has redUced the vaZue of the thing soZd below the purahase price. the measure of damages being the difference between the purchase price and the value of the thing soZd in its damaged or defective state.

The nature and histcny of aestimatorian relief was traced by Innes CJ in SA OiZ & Fat Industries Ltd v Park Rynie WhaZing Co Ltd (relief mder the actio quanti minoris was granted in this case, the facts of which are given in a. above) as_ follows: "The quanti minoris action which has descended to us from the Civil [RDman] law, entitled the purchaser who after delivezy became aware of redhibitol)' defects to claim back'a proportionate share of the purchase price; The · standard of relief approved by _RDman jawyers in such a case was the difference between the price ·actually given and the price which the purchaser would have given had he known of the defects . . . . That was a standard not easy of application. The difficulty of deciding what a beyer, wise after the event, would have given for the defe'cti ve article if he had known of its defects, nrust have been great.And-the measure adopted by many RDman-rutch writers was the.differ-

. ence between the purchase price and the actual value of the thing sold . . . . That was a more satisfactozy standard; for the real worth of the defective article could be .more accurately ascertained than the price ,which the buyer wo):lld have been willing to pay -tmder circumstances with which he had never been actually confronted. That standard has,been sanctioned by South African practice."

Moster-t v Noach (1884) 3 SC 174. M sold the feathers of certain ostrich birds to certain parties. · ·N agreed j:o buy these birds after they were plucked· for .£21 and paid the price. The birds were then

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sold by N to a third person for E41 before they were plucked. After they had been plucked they were delivered to N, when he discovered that they had been sp over-plucked that they were· damaged. N took the birds, kept them, and sued ~1 for £20 damages. The price of ordinary birds of the sane age as those sold was at tl'ie time of delivery more than £21; and the value of the birds in question, as they were at the time of deli very, was fully. £21. A magistrate gave judgment for N for Eio. ~1 appealed. HELD, 'by the Cape Supreme Court, the magistrate's Judgment should be altered into one of ·absolution from the instance. Ie Villiers CJ said: "If the birds had been of less value than the price at the time of delivery .• the plaintiff would, even· after acceptance, have ·been entitled to recover the difference, but the evidence rather goes the other way."

See also Truter v Dunn in a. above, in which case ~~dorp CJ said: ''With regard to acceptance generally, as a grotD1d of defence to the aatio redhibitoria, it may be laid down that the deliberate acceptanCe of the thing sold with full knowledge of the defect complained of or of a breach of warranty will be a bar to the aatio redhibitoria ... though it will not necessarily deprive the purchaser of the right to sue for a reduction of the purchase. price by the aatio quczrtti minoris, if he can show that by rea.Son of the defect the thing was at the .date of the delivery worth less than the price paid by him." ·

Where the sale aomprises a nwnber of articles and the defeat appears in one or more of them, aestimatorian relief exists in respeat of the defeative artiales. If the sale is indivisible (as it may be even when .a separate price is put against each article, as in the sale of a business where the total price is brought up to a rotD1d figure by valuing goodwill), the buyer is only entitled to relief if the valuation of aU the artiales, defeative and sound, shows he has obtained less than he aontraated for. ·

Alhedeff- v r.e Gr>ys 1956. (1) R&N 73.- A sold to Le G his business as a whole by a contract which stipulated that the .purchase price of the stock in trade should be landed cost plus 2~%, Le G, alleging that some dress patterns, which l'iere portion ot the stock, were lD1Saleable and worthless, claimed in an aatio quanti minoris a reduction of the purchase price. His claim succeeded before a magistrate. A appealed. HELD, by the High Court of Southern Rhodesia, allowing the appeal, the contract was similar to a lump-sum contract and was indivisible, and thus a claim quanti minoris for a reduction of the purchase· price must be based not· upon depreciation in value of some portion of the res vendita independently of too restof the res, but upon the difference between the contract price of the res vendita as a whole and the market price of the res as a whole if sold with the defect complained of.

The right to aZaim aestimatorian relief is lost where the artiale is taken by the purahaser as satisfying the aontraat with knowledge of the ~feat (~lackeurtan 1972 p 267).- Refer to- 4.3.1 d. above.

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(c) Consequentia~ damages where -

(i) the seUer knowing of, or having reasonah~e grounds for suspecting, the defect has said nothing ahout it or represented its absence;

(ii) he has given an express or implied warranty against the existence of ~atent defects or as to fitness for the purpose for which the thing is bought;

(iii) he is the manufacturer of the thing sold or a dealer who pub~ic~y professes to have attributes of skiZZ and expert know~edge in re~tion to that kind.oj' thing.

G~aston House (Pty) Ltd v Inag (Pty) Ltd illustrates (i) (see 4.3 a. above for details of this case);· Bower v Sparks, Young and Fanners' Meat Industries Ltd mdEvans & P~ows v WiUis & Co (4.3 b. above) and Norton v Johnston ( 4. 3.1) ·illustrate (ii); Ho~mdene BriclaJJorks (Pty) Ltd v Roberts Construction Co Ltd ahd Kroonstad Westelike Boere-Ko-operatiewe Vereniging Bpk v Botha and anotheJ' illustrate (iii) (4.3 c. above).

4.6 Buyer may use aediZitian remedies as a ground of.defence

The facts which will give the buyer a right to redhibitozy relief · (4.5 a. above) or aestimatorian relief (4.5 b.) will give him the right to defend an action for the purChase price, or any: other action arising out of the contract, at the instance of the seller.

Where the buyer aZaims redhibitor!} relief, he de'nies liabi Zity and c~ims in reconvention for damages and refund of the purchase price with interest and of necessary expenses and tenders the return of the thing sold. Whero he c~ims aestimatorian relief, the exceptio quanti minoris is avaiZahZe as a defence to so much of the c~im for the price. as exceeds the amount to which the price should be reduced.

Grosvenor Motors (Border ) Ltd. v Visser 1971 (3) SA 213 (E). V had purchased a 1961 model car from G. He fm.md, however, that ~e car delivered to him and accepted by him was a 1968 model and when sued for the balance of the purchase price of RZOO he pleaded by way of exceptio quanti minoris that the value of the car delivered was RZOO less than the purchase price and accordingly G was not entitled to the amount claimed. A magistrate·• s· court having found in V' s favour, G appealed. HELD, by the Eastern Cape Division, what V had to prove was that the actual or true value of the vehicle was R 200 less than the p~rchase price; further, on the evidence V-had failed to prove such value and the appeal accordingly should be allowed.

Davenport Corner Tea Room (Pty) Ltd v Joubert 1972 (2) SA 709 (D). J failed to pay. ·an insta-lment of Rl 000 of the purchase price of RS 000 for the assets of. a business, and when sued for the sum alleged that the merx had a ·latent defect, entitling her to a' reduction, through the exceptio quanti minoris, of Rl 000. of the purchase price. More than Rl 000 of the price still remained payable .. , HELD, by the Durban and Coast Local Division, J's plea must fail because tJ:!e balance would exceed the amount deductible .. Miller J said:

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SELLER'S DUTIES AND BUYER'S FEME DIES 143

"If I am correct in ... equating the basis of the aa"/iio with that of the e:caeptio quanti minoris, ·it is instructive to test the defence in the present case by examining the position which would have arisen if, instead of using the _e:caeptio, the defendant had used the aatio quanti minoris and counterclaimed for repayment of R1 000 of the purchase price- already paid by her under the contract of sale. For this purpose I assume in favour of the defendant that she has already paid the ·slDll of R1 500 which she was required to pay in cash on CCJIIpletion of the contract . . . . If defendant had counterclaimed for repayment of R1 000, plaintiff would ... have had a devastating answer to her claim ... it would have been entitled to reply that inasmuch as defendant was still indebted to it in tenns of the contract in a sun exceeding the amount of her counterclaim, her claim for R1 000 was extinguished by set-off . . . . This conclusion · reinforces the conclusion which 1 have reached that defendant was

. not entitled in this case to refuse to make the pa)'ment of R1 000 due in tenns of the contract. To hold otheoose would mean that by invoking the e:caeptio the defendant would have more extensive rights than she could exercise under the aatio quanti minoris."

Zieve ti Verster & Co 1918 CPD 296.. V bought 59 pigs from Z. Subsequently 36 were· slaughtered and 28 found t<;> be suffering from measles and mfit for hi.UIIIIll consumption. V tendered to return the remaining 23 pigs but Z refused to accept the tender. These 23 pigs thereafter died through no fault of V. Z s~d for the purchase price of the pigs. HELD, by the Cape Provincial Division, V was entitled to a redlction :in tre purchase price and was not liable for the value of the 23 pigs that had died. Gardiner J said: "When goods are sold with a latent defect and there is no question of their being sold voetstoots as they stand with all their faults, the buyer, upon discovering a latent defect, may claim a reduction of

· the purchase price, to the extent to which the article is less in val~ than the price, on' account of the defect. This is what the defendant relies upon, and I think it is a good defence . . . . The defence set up by Verster ·& Co is the defence which would justify the aatio quanti minoris."

See also·J K Jaakson (Pvt)· Ltd v Salisbury Family Health Studio (Pvt) Ltd in 4.3.1 b. above; Shiels. v Minister of Health and Holz v Thurston & Co in 4. 3. 2; CoHen v Rietfontein Engineering Works, Hall-Therrnotank Natal (Pty) Ltd v Hardman, Af:riaan Organia Fertilizers and Assoaiated·rndust:ries Ltd v Sieling, SA Oil & Fat Industries Ltd v Park Rynie Whaling Co Ltd and Truter v Dunn in 4.5 a:

SECTION 5. UNFOuNDED DICTUM ET PROMISSUM

5.1 Nature of diatwn et promissum

Grobler J in HaU v Milner (below) said: "It seems to me ... that a diatum promissumve means any statement by the vendor during the negotiations which bears upon the quality or val~ of the res · vendita and which can reasonably be const~d as intended to be

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acted ~on by the buyer . . . . I have been lDlable to find a clear or satisfactory distinction between dicta and promissa in the authori-ties on Roman 1.aw. It seems to me that dictum promisswnve was '-. intentled to express essentially the same, or very nearly the. same notion namely: a staterrent or lDldertaking or proinise by the vendor which was intended to be acted. upon by t.he parties."

In Phame (Pty) Ltd v Paizes (below) Hol.Jres JA had this to say -

"3. A dictum et promissum is a material staterrent made by the seller to the buyer during the negotiations, bearing on the quality of the res vendita and going beyond rrere praise and commendation.

4. Whether a staterrent by the seller goes beyond rrere praise or corronendation will depend on the circi.DilStances of each case. Relevant consideration~ could include the following: wli'ether the staterrent was made in answer to a question from the buyer; its materiality to the known purpose for which the buyer· was interested in purChasing;· whether the staterrent was one of fact or of personal opinion; and.whether it would be obvious even to the gullible tha't the seller was_merely singing the praises of his wares, as sellers have ever been wont to do."

5. 2 AediUtian. remedy ·availabLe to buyer where dictum et promissum unfounded -

Holmes JA in Phame (Pty) Ltd v Paizes states: "They [the RomanDutch authorities] are simple and clear~- "

(ii) Similarly, if during the negotiations the seller made a dictum et promissum bearing on the quality of the rea vendita and it falls short of it, ipso facto the aedilitian rerredy is available, by operation of law. There is no need to invoke any warranty or term or. to aver the breach of either. Inde~d, that is one of the reasons why the aedilit.ian rerredyr is useful to buyers ... "

' . o Phame '(Pty) Ltd v Paizes 1973 (3) SA 397 (AD): In October 1970

Paizes had negotiated for the purchase of all the shares in a com-pany. Its principal a5set was an immovable property which was rentproducing. To the knowledge of the seller, P was interested in the purchase of this property because of the incorre derived from it. Amongst the factors which affected the true value of the shares were the expenses incurred by the company in connectioh with the property, the rental being produced, and the potential additional rental reasonably expected to be produced. The seller's agent repre.sented to P that the nrunicipal assessment rates were R4 646. This representation was to the knowledge of the 'agent material. On 15 October P, believing the rate to be as disclosed, bought the. shares for R846 000. At the time the representation was made it was false for the company's . annual liability for rates was R14 736 and had been so prior to September 1970. Had P known this he would not have agreed to pay the price paid as the true .value of the shares was RBIS 000. The rental

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income was R93 480 and the expenses Rl8 002 per annum. There had been an increase .in rental in September 1970, arising out of an actual increase in rates. An investor would therefore have realised, had the true facts been known to him, that potential rent increase was not likely to be achieved because it had been absorbed by the Rll 500 increase of rates and the consequential very recent :tncrease of rents. P claired a reduction of the purchase price _by ari amount of R31 000. I11 the alternative this amount was claiiOOd-as damages. The seller's exception to the summons was dismissed by the Witwatersrand Local Division. The selle.r appealed. HELD, by the Appellate Division dismissing the appeal, the aedilitian relief recognised under the Roman-llitch law could, while retaining its basic principles, be adapted to apply to the modem circumstances of this case; the pleadings· laid the foundation for the aedilitian relief of a reduction of the purchase price.

Hall v Milner 1959 (2) .SA 304 (O). M claired E2 000 damages arising either from a breach of warranty that the liabilities of the business he bought from H did not exceed the value of the stock or from an· innocent misrepresentation to this _effect. An exception was taken inter alia to the alternative claim. -HELD, by the Orange Free State

·Provincial Division, the exception should be dismissed. Grobler J. said: "In my opinign if regard is had to the principles of the Roman and Roman- llitch law of sale· and the developrent of our law, no good reason 'can be found for denying the aatio quanti minoris (or a claim for restitutional damages) to a plaintiff who has been induced to enter into a contract -by a material innocent misrepresentation of a defendant, which has not been made good."

SECTION 6. SELLER'S EXCLUSION OF LIABILITY

6.1 Seller may p~teat himself against liability

A seller may proteat himself against a b:reaah of wa1'1'anty by a non-wa:nunty alause. "-- .

The buyer will not be bound by a speaial te:rrn of this kind unless he has expressly or impliedly aaaepted it. For the principles of the law of contract relating to special tenns ·in signed doctDllents, in tickets, receipts and programmes, and in notices incorporated into contracts, see Volpe 1980 Part 1 Section 2. 4.

The aourt will .also intet>pret and apply the non-war:rrznty alause (also referred to as an exemption or exclilsory clause) stt>iatly.

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Van Vuu:ren v Kloppers Diskontohtds (Edms) Bpk 1979 (1) SA 1053 (O). V had instituted action against K in a magistrate's court for damages for breach of contract. on the ground that, in breach of the e:Xpress, al~matively tacit, term of a contract of sale of a television set and accessories, K had _failed to deliver certain of the accessories to V. From the evidence it appeared that the accessories were required for the installation of the television set on V's fann, that, when V returned to his fa.nn with the_cardboard

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THE ZIMBABWE LAW JOURNAL

carton containing the television set and accessories, he discovered that K had not supplied certain of the accessories and that V, on receiving the goods at K' s business premises, had signed an invoice in which he admitted that he had received the goods in good order. The magistrate had granted absolution from the instance at the close of V' s case. In an appeal the court found that the magistrate had misdirected himself by finding that V had to prove his case on a balance of probabilities in order to ·avoid an application for absolution and that the crucial question was, having regard to the admission contained in the invoice, where inspection of the goods. should have taken place. HELD, by the Orange Free State Provincial Division dismissing V' s appeal, the place where the goods were received and delivered was not necessarily the place where they should have been inspected; no evidence, however, had been. adduced which indicated that it was within the contemplatiim of the parties that inspection of the goods should have taken place at a place other than the place of deli very thereof, ie K' s business premises; there was no suggestion that K had not given V an opportunity to inspect the goods; it could never have been in the contemplation of the parties that V could only inspect the goods on his farm; V should have required the cardboard box to be opened and should .have inspected the goods before signing the invoice.

Ar"lett-Johnson v UDC Rhodesia Ltd AD 240-76. A hire purchase agreement was entered into by AJ and a firm of car salesmen known as Maple Leaf 1-btors. There was a cession of this agreement to UDC which company, as cessionary, sued AJ for moneys owing in terms of the agreement. In answer to the sumrons AJ pleaded that a representative of the seller, Maple Leaf M:Jtors, offered the car to him for sale and induced him to purchase it by means of a false misrepresentation that the vehicle was a 1967 model, whereas in truth and in fact, and to the representative's knowledge , the representation made was false, in that the vehicle was a 1965 model. UOC filed an exception based .on a clause ;Ln the agreement acknowledging that the seller had given "no warranty as to the condition, state or quality of the goods." A magistrate .upheld the exception and i'J appealed. HELD, by the ~odesia Appellate Division allowing the appeal, there was nothing in the contract itself in the nature of a warranty that the car was a 1967 model: this was clearly a case of misrepresentation falling outside the terms of the contract, made anterior to the contract and which induCed-the contract; the terms of the acknowledgment 'signed by AJ raised no estoppel against him in favour of UOC and the exception should be dismissed.

Melfort Motors (Pvt) Ltd v Finance Corporation-of Rhodesia Ltd 1975 (3) SA 267 (RAD). M hired a caravan' from F in terms of a written lease which described the caravan as "new'' and contained the following clause: - ..

(

"The lessor gives no warranty of any description express or implied in respect of the leased goods and acceptance of leased goods_ shall be an admission by him that the same are in first class order and repair."

After delivery of the caravan M discovered that ·the stub axles of

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SELLER's DUTIES AND BUYER's REMEDIES 147

both wheels we're second-hand, and rescinded the contract. F sued M successfully in a magistrate's court for rent due under the lease. M appealed. HELD, by the Rhodesia Appellate Division allowing the appeal, the presence in the caravan of the two second-hand stub axles. which were a vital part of the caravan, rendered it quite inappropriate to describe the caravan as new, unless in qualification of that description there was a disclosure that the caravan . was new in part and old in part; further, the clause in the lease disclaiming any warranty did not protect F against an innocent misdescription of the caravan since there was no provision that F gave no warranty "as to the description"; in the absence of those words. the clause did not preclude M from rescinding the contract.

Agricultural Supply Association v Olivier 1952 (2). SA 661 (T). A sold Q tomato see·ds Which purported to be Rutgers tomato seeds. In an action for damages 0 alleged that the seeds·supplied were not Rutgers but some other tomato seeds. A had in its invoice repeated a non-warranty clause appearing in its catalogue that, while it takes the utmost care to supply seeds . . . true to name and s:haracter . . . owing to the fact that certain seeds are indistinguishable from other seeds of different name and/or character and owing to changeable climatic conditions ... and various causes over which it has no control ''we give no warranty. express or implied, as to the description. name and/or character-of any .seeds . . . and we will not be in any way responsible for results". ·A magistrate's court gave judgment in "favour of 0. A appealed. HELD, by the Transvaal Provincial Division allowing the appeal, the clause contained a recital and an operative part and, as the operative part was unambiguous, 0 was not entitled to recover.

A common example of a non-warranty clause is the voetstoots clause (see 4.3.1 a .. above).

The exclusion of all implied war:a:nties appears to exclude remedies for latent' defec;ts.

Groyling v Fick 1969 (3) SA 579 (T). F sold G a;~econd-hand bulldozer with rip-plough in tenns of ·a written hire-purchase contract. Clause 12 (ii) 6f the contract contained a provision wherein G as purchaser acknowledged that the ·seller gave no warranty in respect of the condition, order or quality of the goods sold or in respect of their suitability for any purpose arid that any implied warranty wis expressly excluded. · On being sued for the purchase price G alleged that he was in law not compelled to make any payments because the goods· sold suffered from serious latent defects. A magistrate ordered sl.DTMiazy judgment against G because, in the express exclusion of all implied warranties in clause 12 _(ii), the implied warranty against latent defects was also excluded. G appealed. HELD, by the Transvaal Provincial Division dismissing the appeal, the pa:rties by· the words "any implied warranty" /had excluded any remedy in connection with latent defects. Boshoff J said: "The clause deals with warranties and is couched in such wide tenns that it envisa~s the exclusion of all warranties, express or implied. Thare is nothing in the cl.ause which limits implied warranti_es to those with

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a factual origin. In fact it refers to any implied warranty. It is of course correct that the remedy which a purchaser has in respect of latent defects which affect the usefulness or suitaDility of the purchased article is a natural result of the contract of sale, but for many years_y.ow -it has been accepted by the Courts and the writers that it is based in essence on an implied warranty which is inserted by the law." ·

6.2 SelZer loses protection where he is fraudulent

A clause excluding the seller's liability will not help him if he is ·fraudulent.

Wells v South African AZwnenite Company 1927 AD 69. W, when ·sued in a magistrate' s ·court for the purchase price of a lighting plant purchased by him from S, raised the de fence that he had been induced to enter into the contract by certain misrepresentations made by the salesman who, acting on behalf of S, negotiated the sale. In recon

. vention W claimed a rescission of the sale on the ground of the alleged misrepresentations. 1t appeared that an order fonn signed by W contained the following condition: "I hereby acknowledge ·that I have signed this order irrespective of any representations made to me by any of your representatives and same is not subject to cancellation by me." An exception taken by s to the claim in reconvention was dismissed by the magistrate. S appealed to the Eastern Districts Local Division which upheld the exception. W appealed. HELD, by the Appellate Division dismissing the appeal, in the absence of any allegation that the representations made were fraudulent, w was bound by the condition in the order and his plea, therefore, disclosed lio defence. Jnnes CJ said: "On grounds of public policy the law-will not re.cognise an undertaking by which one of the contracting parties binds himself to condone and submit to the fraudulent conduct of the other. The Courts will not bind themselves to the enforcement of such a stipulation; for to do so would be to protect and encourage· fraud."

·vlotman v Landsberg (1890) 7 SC 301. A· cow was sold to L·upon certain conditions by an auctioneer, one of whicli was that every article was sold "as it is"·. During the course of the sale t)1e _seller V fraudulently misrepresented that the cow gave 14 bottles of milk a day. L induced by this representation bought the cow, which only gave two bottles of milk a day for a period of some days during which she was in L's possession. L sued V for ElO, being the price of E8 lOs and £1 lOs for the keep of the cow.· A magistrate gave judgment for L and V appealed. HELD, by. the Cape Supreme Court dismissing the appeal, L was entitled to rescind the sale and to claim for the keep of the cow. Smith ACJ said: "It is quite. true that by the conditions each article was sold 'as it is'. But·where one party to the contract has been guilty of fraud, the other party_ is entitled to relief."

· See also Crawley v Frar~k Pepper (PtyJ Ltd, Van .der Merwe· v Culhane and Hadley v Savory in 4.3.1 a. above.

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SELLER's DUTIES AND BUYER's REMEDIES 149

The buyer, however, is estopped from·setting up the fraud of the seUe_r as Q(Jainst an innocent cessionary (for an explanation of' cession-see Volpe 1980 Part 3 Section 2.2.2 a).

Die Trust Bank van Afrika Beperk v Du Toit 1961 (3) SA 36 (T). In an action by the Trust Bank, as cessionary of a hire-purchase agreement relating to a piano, against the purchaser T for the retum -of the piano and- payment of the arrear instalments plus interest, .it appeared that T sought rescission on the ground of the cedent's f~aud. The Trust- Bank relied upon estoppel by_ representation

- since T had known that the contract was to be ceded and had signed a clause therein stating that no representations of any nature had been ~ to him and that no guarantee of any nature had been given. A magistrate gave judgrrent for_ T and the- Trust Bank appealed. HELD, by the Transvaal Provincial Division allowing the appeal, it was not against public policy to allow the cessionary to take advantage of the fraud of the cedent where the former was innocent; there was nothing to show that_ the cessionary could or should have suspected that the contr~ct ceded to it was tainted with fraud; the statement that no representation had been made included a statement that no fraudulent representation .had been made, and the cessionary was accordingly entitled to rely on estoppel as- claimed.

(To be continued) \

Shorthand writer, make a note on the record that, for the information of the appeal court, the smudged signature on this document was not caused by the tears of the accused but by my clumsy clerk knocking over my glass of water.

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Documents

SELLER'S DUTIES AND BUYER'S REMEDIES (2)