Exam 2019, questions and answers PDF

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Department of Mercantile Law Business Law 210 (BER 210) Marks: 25 Time: 60 minutes ___________________________________________________________________ Examiners: Dr T Joubert, Prof F Cassim and Ms N Mapefane Internal moderator: Dr C Fritz Language editor: Prof CJ Nagel Instructions: 1.

Answer all the questions in the answer book provided. Please note that language and structure will be taken into account in the assessment of your answers.

2.

Students are not allowed to use Tipp-ex or something similar.

3.

No mark will be given for a yes or no answer where reasons must also be given.

4.

This paper consists of 5 questions.

Question 1 [5 marks] Read the following statements carefully. State whether they are conditions, terms, modal clauses, guarantees or assumptions. Where you indicate that the statement is a condition or term, you must also indicate whether it has suspensive or resolutive working. Example: 2.1 Suspensive condition. 1.1 A contract of lease between Andrew and Benny contained the following clause: “The contract of lease will continue until Benny has obtaine d his B Com degree.” Resolutive condition (1) 1.2 A contract of sale between Ntombi (the seller) and Zinthle (the buyer) contained the following clause: “The full purchase price is payable within 14 business days after the signing of the contract.” Suspensive term (1) 1.3 “This contract is subject to the party obtaining a loan from the bank.” Suspensive condition (1)

1.4 A contract of lease contained the following clause: “The tenant may rent the flat untill he has children.” A resolutive condition (1) 1.5 Joseph donates his farm to Shirley subject to Shirley building a school on the farm. Modal clause (1)

Question 2 [5 marks] Match the word(s) or phrase in column A with the best corresponding word(s) or phrase in column B. Write down only one option. Example: 2.1 L Column A 2.1 Justinian 2.2 Real right 2.3 District court 2.4 Civil case 2.5 Assignment

Column B A. Contract. B. Codification. C. Beyond reasonable doubt. D. State is always a party. E. Delict. F. Copyright. G. On a balance of probabilities. H. Glossators. I. Ownership. J. Transfer of rights. K. R 600 000 or 15 years’ imprisonment. L. Period of the Kings. M. Human right. N. R120 000 or three years’ imprisonment. O. Tri-partite agreement.

Answer: 2.1 B (1) 2.2 I (1) 2.3 N (1) 2.4 G (1) 2.5 O (1)

Question 3 [5 marks] 3.1 “Cars4U.co.za” advertised a second-hand car for sale for R200 000. On 5 March 2019, Andrew, who lives and works in Mbombela, sent an email to the car dealership, situated in Bloemfontein, offering to purchase the vehicle for R190 000. The car dealership sent a reply email on 6 March 2019, accepting Andrew’s offer. Andrew left his laptop in the boot of his car, and only downloaded his emails on 8 March 2019. Andrew downloaded 165 emails but did not open/read them all at once. He did notice that there was a reply from

the car dealership but he only managed to read the car dealership’s acceptance on 9 March 2019, whilst on a business trip in Pretoria. Was a valid contract concluded between Andrew and the car dealership? If you answer is yes, explain when and where the contract was concluded; however if your answer is no, explain in detail why there was no valid contract concluded.

Answer: Advertisement is not an offer, only invitation to do business (1) E-mail of 5 March = offer (1) E-mail of 6 March = acceptance (1) Both offer and acceptance made by data message (1) ECTA is applicable (1) Time/Date of conclusion = when data message enters information system and capable of being retrieved (1) 6 March 2018 (1) Place is where offeror usually works or lives (1) Mbombela (1) Max 4 marks. 3.2 Why is it important to establish the place where the contract was concluded? (1) Answer: To determine which court has jurisdiction. (1) Question 4 [5 marks] Lerato and Alex concluded a contract on 1 May 2019. In terms of this contract Lerato sold elephant tusks to Alex for R20 000. They agreed that Lerato would deliver the elephant tusks to Alex on 2 May 2019. Lerato’ s licence to sell elephant tusks expired on 18 March 2019. Lerato is an employee of the Waterkloof Nature Reserve and Game Farm. Her contract of employment does not allow her to sell any game or any part thereof in her private capacity and time. 4.1 Discuss the validity of the contract between Lerato and Alex. (2) Answer: Contract=invalid (1) ex turpi causa (1) Performance is illegal: statute requires a person to be in possession of a valid licence to sell elephant tusks; (1) Lerato’s sold the elephant tusks to Alex without a valid licence (expired licence). (1) Max 3 marks 4.2 Assume that Alex made payment of R20 000 and Lerato fails to deliver the elephant tusks. Can Alex claim his performance from Lerato? (2 ) Answer:

Par delictum rule: (1) where parties are equally to blame (1) the possessor has the strongest right (1) party who already performed cannot claim back based on unjustified enrichment. (1) In rare cases SA court’s are willing to relax the par delictum rule. (1) Alex cannot claim performance from Lerato, unless the court relaxes the Par delictum rule in order to do “simple justice between man and man”. (1) Max 2 marks Question 5 [5 marks] 5.1 Prisilla, who is 17 years old and is married to Cyril out of community of property, concluded a contract for the sale of household furniture. In terms of the contract, Prisilla sold all her dining room furniture to Ben for R8 000. Prisilla did not obtain permission from Cyril to conclude this contract. Is the contract between Prisilla and Ben valid? (3) Answer: Prisilla is married and is therefore a major (1) Prisilla does not need Cyril’s permission to con clude the contract (1) because Prisilla is married out of community of property (1) The contract is valid (1) Max 3 marks. 5.2 Assume that at the time of concluding the contract with Ben, Prisilla and Cyril were already divorced. Would your answer to question 5.1 above differ? Give full reasons for your answer. (2) Answer: No, the contract remains valid (1) Prisilla remains a major despite her divorce (1)

End of the paper Total: 25 marks...