Credit Agreement Resolutive Condition

Pactum reservati dominii 2. Facts of the causal agency and the issues to be decided4 3. Validity and effects of pactum reservati dominii in the give birth case5 Conclusion7 References8 Table of Cases twists Trustees v Assignees of Liddle & Co. (1884 1885) 3 SC 322 Courtney-Clarke v Bassingthwaighte 1990 NR 89 (HC) metalworker & Venter v Fourie 1946 WLD 9 R v Ellinas 1949 (2) SA 45 Gosvenar Motors v Samson 1956 (3) SA 169 content Motors v Fall 1958 (2) SA 570 IntroductionThe law governing mention transactions is the address Agreement solve 75 of 1980 (hereinafter referred to as the Act) which replaced the hire-purchase Act 36 of 1942 as a result of Proclamation AG 17/1981 which states that Subject to the provisions of this Proclamation, the Credit Agreements Act, 1980 shall apply to the territory of southward West Africa. The act regulates transactions where movable goods are purchased or use up on confidence. It also applies to services rendered on source.According to the Act, a cite under(a)standing is a citation transaction or a leasing transaction or any(prenominal) transaction with the same import regardless of its fake or regardless of the fact that the transaction(s) is subject to resolutive or suspensive powers. For the purpose of this assignment, I get out only discuss issues pertaining to reliance transaction because the case of quarter notes Trustees which is central to the question whether there is cut-rate sales event before the make it assignment is gainful falls with the ambit of this paper.A recognise transaction agree to the Act includes goods sold and services rendered against payment of a stated of discoverable prospective date or in whole or in part in instalments over a period in future. arm 1 (b) states that the goods shall mean movable goods or in early(a) haggling movable property. This point is signifi poopt given the nature of the difficulty we are faced with of whether a contract of sale by realiz ation exists. 1. Pactum reservati dominii Before looking at the facts in the case of oddments Trustees v Assignees of Liddle & Co . It is important to briefly discuss the concept of pactum reservati dominii. Credit compacts are in a form of pactum reservati dominii which entails that the vendor allows the purchaser to upshot possession of the goods but self-control is retained by the sell until the emptor or purchaser has paid all the instalments. The pactum reservati dominii is meant to protect the seller who sells goods on ascribe. It also provides the seller with security in case the purchaser defaults on the payment of instalments. The pactum clause is the same as a suspensive hold back.It suspends not only possession but also the whole contract of sale until the fulfilment of the suspensive condition the payment of the purchase price in full. It means that unless there is an cartel to the contrary, the risk will only legislate to the buyer when the last instalment h as 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 Briefly the facts from the headnotes are as follows Q sold the furniture, fitting and stock of a certain hotel expound to L. , who subsequently assigned his estate for the benefit of his creditors, and Q and L. s assignees the entered into the hobby create verbally agreement Sold by L. s assignees to Q. all the furniture, fitting etcetera in fact, everything stored in the town for ? 650, Q. to give distinctions at three, six, nine and xii months. Property in goods bought to pass to Q. only upon payment of the last bill. The greater portion of the goods so sold was delivered to Q. who, however, neither gave the bills nor paid any portion of the price. Q. the surrendered his esta te. 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 credit and (b) whether upon a contract of sale of goods the property essential be held to pass forthwith 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, payable at varied dates, agreed to be given by the purchaser in payment of the rice. 3. Validity and effects of pactum reservati dominii in the empower case The Credit Agreement Act provides the following regulation (1) The attend whitethorn. (a)prescribe the maximum period within which the full price under a credit agreement shall be paid (b)prescribe the portion of the capital price or any other consideration which shall be paid or delivered as an initial payment or initial term of a contract in monetary value of a credit agreement (c)prescribe the manner in which the price of any goods or s ervice shall be displayed or advertize d)generally, prescribe any such conditions as he may bump fit in regard to any credit agreement. (2) Different regulations may be made under subsection (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 worth mentioning that Section 1 (b) states that the goods shall mean movable goods or in other words movable property. There is no doubt that the parties agree that the buyer will pay in instalments.There is also no doubt that the buyer did not honour the agreement. The problem that we have to deal with is whether this type of agreement can be regulated by the Credit Agreement Act 75 of 1980 which is still applicable in Namibia despite the fact that where it originated in confederation Africa, it has since been replaced by a more progressive and market cognizance National Credit Act. Based on our understanding of Section 1 (b) the agreement does not fall within the realm of the Act and hence it cannot be said to be a credit agreement as it postulate sale of immovable property.This agreement is rather governed by two Acts that are still applicable to our law i. e. Formalities in Respect of Contracts of sales event 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 nerve center of the agreement is the building and trim down 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 transmission line or residential addresses or, if they do not have such addresses, any ot her address in the territory (c)state the amount paid or to be paid as an initial payment or as initial rental (d)contain a description whereby the goods or service to which that credit agreement relates, and any goods delivered to the credit grantor as payment, may be quick identified (e)if it is an instalment sale transaction, state the conditions, if any, as to the reservation and enactment 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 right 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 language which the credit receiver may request in writing. (2) No person shall be a party to a credit agreement which does not comply with a requirement referred to in subsection (1) Provided that a credit agreement which does not comply with any suc h requirement shall not merely for that reason be invalid. 3) If after tar 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 described 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 immortalize clearly 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 frequent occurrence than a resolutive one. A resolutive conditio n provides that the ownership shall pass to the buyer immediately 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 fairness The International 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