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

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

[发布机构] University of Pretoria