Credit Agreement Resolutive Condition

Pactum reservati dominii 2. Facts of the case and the issues to be headstrong4 3. Validity and effects of pactum reservati dominii in the bewilder case5 Conclusion7 References8 Table of Cases homoeroticisms Trustees v Assignees of Liddle & Co. (1884 1885) 3 SC 322 Courtney-Clarke v Bassingthwaighte 1990 NR 89 (HC) Smith & Venter v Fourie 1946 WLD 9 R v Ellinas 1949 (2) SA 45 Gosvenar Motors v Samson 1956 (3) SA 169 National Motors v put across 1958 (2) SA 570 IntroductionThe law governing reference legal proceeding is the consultation concordance move 75 of 1980 (hereinafter referred to as the Act) which replaced the Hire-Purchase Act 36 of 1942 as a result of resolve AG 17/1981 which states that Subject to the supply of this Proclamation, the Credit Agreements Act, 1980 sh entirely apply to the territory of mho West Africa. The act regulates feats where conveyable goods ar purchased or leased on cross. It also applies to services rendered on assurance.According t o the Act, a assurance arranging is a consultation exercise or a leasing transaction or both transaction with the said(prenominal) import heedless of its mannikin or regardless of the fact that the transaction(s) is subject to resolutive or nail-biting holds. For the purpose of this assignment, I ordain just discuss issues pertaining to quotation transaction because the case of Quirks Trustees which is exchange to the question whether there is exchanges event earlier the last assignment is rendering(a) travel with the ambit of this paper.A citation transaction match to the Act includes goods sell and services rendered against stipend of a stated of determinable afterlife era or in strong or in part in segments over a period in future. Section 1 (b) states that the goods sh both immoral portable goods or in some other course movable airplane propeller. This point is solid given the nature of the paradox we argon faced with of whether a bosom of sale by extension exists. 1. Pactum reservati dominii Before look at the facts in the case of Quirks Trustees v Assignees of Liddle & Co . It is weighty to briefly discuss the concept of pactum reservati dominii. Credit concords are in a form of pactum reservati dominii which entails that the commercialiseer allows the emptor to take willpower of the goods but possession is retained by the sell until the vendee or purchaser has gainful all the instalments. The pactum reservati dominii is meant to protect the seller who sells goods on reference. It also provides the seller with warranter in case the buyer defaults on the pay of instalments. The pactum clause is the same as a suspensive condition.It suspends non only ownership but also the altogether contract of sale until the fulfilment of the suspensive condition the stipend of the purchase impairment in full. It means that unless there is an harmony to the contrary, the risk will only broaden to the buyer when the l ast instalment has been paid. Consequently, the Aedilitian remedies for defects of the goods are not available to the buyer until the payment of the last instalment. 2. Facts of the case and the issues to be decided The case of Quirks Trustees v Assignees of Liddle & Co is concerned with the transfer of ownership.The in short the facts from the headnotes are as follows Q sold the furniture, suitable and stock of a certain hotel exposit to L. , who subsequently as sign his estate for the realize of his opinionors, and Q and L. s assignees the entered into the following written accord Sold by L. s assignees to Q. all the furniture, fitting etc. in fact, eitherthing stored in the town for ? 650, Q. to give metres at three, six, nightclub and twelve months. Property in goods bought to withdraw to Q. only upon payment of the last bill. The greater particle of the goods so sold was delivered to Q. who, however, neither gave the bills nor paid each portion of the m championtar y value. Q. the surrendered his estate. Q. s trustees and L. s assignees both claimed the goods delivered to Q. The issues were (a) whether this was a valid sale on acknowledgment and (b) whether upon a contract of sale of goods the property must be held to pass now to the purchaser, notwistanding a condition attached to the contract that the property shal only pass upon payment of the last of several promissory notes, collectible at different dates, agreed to be given by the purchaser in payment of the rice. 3. Validity and effects of pactum reservati dominii in the present case The Credit Agreement Act provides the following regulation (1) The minister whitethorn. (a)prescribe the maximum period at bottom which the full price under a attribute stipulation shall be paid (b)prescribe the portion of the cash price or either other reflection which shall be paid or delivered as an sign payment or initial lease in terms of a credence arranging (c)prescribe the manner in whi ch the price of any goods or service shall be displayed or advertised d)generally, prescribe any such conditions as he whitethorn find fit in regard to any credit agreement. (2) Different regulations whitethorn be made under part (1) in respect of different credit agreements, kinds of credit agreements, goods, services, classes or groups of goods or services, credit grantors or credit receivers or categories of credit grantors or credit receivers. It is also expense mentioning that Section 1 (b) states that the goods shall mean movable goods or in other words movable property. There is no dubiety that the parties agree that the buyer will pay in instalments.There is also no suspect that the buyer did not honour the agreement. The problem that we produce to deal with is whether this type of agreement can be regulated by the Credit Agreement Act 75 of 1980 which is still releforefrontt in Namibia despite the fact that where it originated in South Africa, it has since been repla ced by a more progressive and market cognizance National Credit Act. establish on our understanding of Section 1 (b) the agreement does not fall inwardly the realm of the Act and hence it cannot be said to be a credit agreement as it involve sale of immovable property.This agreement is sort of governed by two Acts that are still applicable to our law i. e. Formalities in heed of Contracts of deal of Land Act 71 of 1969 and Sale of Land on Instalments Act 72 of 1971. Although the merx is sold with movable properties, the marrow of the agreement is the building and land on which it stands and not the furniture, fittings etc. Section 5 of the Act provides for the following requirements of the contents of the credit agreement that.. (1) Subject to . any credit agreement shall- (a)be reduced to writing and signed by or on behalf of every party thereto b)state the names of the credit grantor and the credit receiver and their business or residential addresses or, if they do not have such addresses, any other address in the territory (c)state the amount paid or to be paid as an initial payment or as initial rental (d)contain a commentary whereby the goods or service to which that credit agreement relates, and any goods delivered to the credit grantor as payment, may be readily identified (e)if it is an instalment sale transaction, state the conditions, if any, as to the reservation and passing of the ownership of the goods to which that credit agreement relates f)if it is an instalment sale transaction or a leasing transaction, state the conditions, if any, as to the remedy of the credit grantor to the return of the goods to which that credit agreement relates (g)contain a reference to the provisions of section 13 (h)be in the official run-in which the credit receiver may betoken in writing. (2) No person shall be a party to a credit agreement which does not travel along with a requirement referred to in subsection (1) Provided that a credit agreement whic h does not comply with any such requirement shall not merely for that reason be invalid. 3) If after delivery to the credit receiver of goods to which a credit agreement relates, the credit grantor and the credit receiver agree that those goods or any part thereof shall be replaced by any other goods, the goods to be exposit in terms of subsection (1)(d) in that credit agreement shall, as from the date on which those goods are or any part thereof is replaced, be the goods to which that credit agreements relates. We can rightfully contend that agreements do not always show all the way their true nature. A contract, though called by the parties a credit agreement, is really one of sale if it does not entitle the buyer to sale.The condition as to the passing of ownership is a suspensive one if the ownership is not to pass till all instalments have been paid. , Conclusion A consideration of the Quirks case shows that a suspensive condition is of more shop occurrence than a resolutive one. A resolutive condition provides that the ownership shall pass to the buyer instanter on delivery, but revert to the seller if the instalments have not been paid by a certain time, or on any other event. What is known as lex commissoria usually takes the form of such a resolutive condition.It appears, however, that the lex commissoria does not concern the passing of ownership. In the present case, it is clear that this is not a credit agreement although the makers chose to call it as such and that it resembles a credit agreement. It is rather a matter of substance versus form. . References R R Pennington Retention of Title to the Sale of Goods under European equity The planetary and Comparative Law Quarterly, Vol. 27, No. 2 (Apr. , 1978), 277- 318. C Visser, JT Pretorius, R Sharrock and M van Jaarveld Gibson South African Merchadile & Company Law 8th ed. Cape Town Juta & Co