nAml B I A Un IVE RS ITV OF SCIEnCE AnD TECHnOLOGY

Faculty of Human Sciences

Department of Social Sciences

13 Scorch Street Privace Bag 13388 Windhoek NAMIBIA

FACULTY OF HUMAN SCIENCES

DEPARTMENT OF SOCIAL SCIENCES

T: + 264 61 207 2351 F: +264 61 207 9351 E: clss@nust.na W: www.nust.na

QUALIFICATION: Marketing, Commerce, Business Administration, Office Management & Technology, Public Administration & Commercial Advanced Training Scheme (CATS 1)

QUALIFICATION CODE: Various LEVEL: n/a

COURSE: COMMERCIAL LAW 18 COURSE CODE: CML 1125/ CLL 1125

DATE: November 2016

DURATION: 2 Hours MARKS: 100

FIRST OPPORTUNITY EXAMINATION PAPER

EXAMINERS: B Tjatjara/H Von Alten/R Van Zyi/E Wabomba

MODERATOR: Ms. Mercia Geises

THIS EXAMINATION PAPER CONSISTS OF 7 PAGES

(INCLUDING THIS COVER PAGE)

INSTRUCTIONS

1. This examination paper consists of FIVE questions. Students should answer ALL questions.

2. Read the questions carefully before answering. 3. Number answers according to the numbering structure provided in the examination

question paper.

4. Candidates will be penalized for incorrect spelling and illegible handwriting.

Question 1

Choose a correct answer from the alternatives provided for each statement by merely indicating the letter with the correct answer.

1.1. No valid contract of purchase and sale is possible with regard to the following merx:

(a) poison. (b) res sua. (c) future things. (d) stolen things. (e) res aliena.

1.2. A document in terms whereof a specified person is granted certain monopoly rights by the State in respect of a particular invention.

(a) Letters patent. (b) Letters of credit. (c) Letters of copyright. (d) Both (a) and (c) are correct. (e) Neither of the above options.

1.3. In a contract of purchase and sale, ownership is regarded as

(a) Essentialia. (b) Naturalia. (c) lncidentalia. (d) Both (a) and (b). (e) None of the above.

1.4. The first payment to be made by a credit receiver in order for the credit agreement to become valid.

(a) First instalment. (b) Last instalment. (c) both (b) and (c) are correct. (d) Neither of the above options. (e) Initial payment.

1.5. The following is a typical example of a contract containing a resolutive condition

(a) Sale in execution. (b) Sale or return . (c) A lex commissoria. (d) Voetstoots ("as is") sale. (e) None of the above.

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1.6. The sale in which goods are sold in form of a mass at a certain price per unit and must be weighed, measured or counted for a contract of purchase and sale to be perfecta.

(a) Genus sale. (b) Sale in execution. (c) Sale ad mensuram. (d) Sale by description. (e) Neither of the above options.

1.7. Which ofthe following is never implied in a contract of purchase and sale?

(a) Warranty against eviction. (b) Warranty against patent defects. (c) Warranty against latent defects. (d) both (a) and (c). (e) Voetstoots (as is).

1.8. The following is an action for cancellation of the contract and restitution, if a thing is delivered with latent defects

(a) Actio redhibitoria. (b) Actio quanti minoris. (c) Both (a) and (c). (d) Actio empti. (e) None of the above.

1.9. The following is an important obligation of the purchaser in a contract of purchase and sale

(a) To pay transfer duty in respect of immovable property. (b) To accept delivery. (c) To reimburse the seller for expenses in connection with safekeeping and maintenance of

the thing. (d) To pay the purchase price. (e) Neither of the above options.

1.10. The type of merx which is delivered by way of registration in the name of the purchaser at the Deeds Registry.

(a) Movable property. (b) Intellectual property (c) Immovable property. (d) both (a) and (c) are correct. (e) None of the above.

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1.11. The sale of goods that must still come into existence, where the price is fixed as a global sum.

(a) Emptio spei. (b) Emptio rei speratae.

(c) Res vendita.

(d) Future things. (e) Neither of the above options.

1.12. The following is an example of an unaccepted practice at the workplace

(a} Punctuality.

(b) Drunkenness.

(c) Diligence. (d) Subordination. (e) Neither of the above options.

1.13. Choose the incorrect statement.

(a} Copyright shall be infringed if the owner of the work with whom the copyright vests is

criticized.

(b) Copyright does not exist in a speech of a political nature. (c) Copyright can be transferred contractually by assignment. (d) Copyright is conferred only on qualified persons. (e) Neither ofthe above options.

1.14. One ofthe following is not an obligation ofthe employee in a contract of employment.

(a} Payment of remuneration.

(b) Making personal services available.

(c) Obey all lawful and reasonable instructions.

(d) Promote the employer's business and to act in good faith .

(e) Neither of the above options.

1.15. A condition in an instalment sale transaction in which the transfer of ownership is reserved in favour of the seller until the buyer has paid the price in full is called

(a} Resolution condition. (b) Time clause. (c) Warranty against eviction. (d) Neither of the above options. (e) Suspensive condition.

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1.16. In terms ofthe Labour Act 11 of 2007 as amended, night work is

(a) Any work performed in the night.

(b) Any work performed between the hours of 20h00 and 07h00.

(c) Any work performed between the hours of 19h00 and 07h00.

(d) Any work performed after sunset and before sunrise. (e) Both (a) and (d) are correct.

1.17. With some few exceptions for different categories of work, the duration for protection of copyright in Namibia lasts for the lifetime of the author plus how many years from the end of the year in which the author dies?

(a) 50 years.

(b) 30 years.

(c) 20 years.

(d) 10 years.

(e) 5 years.

1.18. If a credit agreement concluded in terms of the Credit Agreements Act 75 of 1980, is not reduced to writing the contract is:

(a) Valid.

(b) Void.

(c) Voidable.

(d) Valid but it is a criminal offence.

(e) None ofthe above.

1.19. An authority which is acquired by a person by virtue of his/her office is called

(a) Implied authority.

(b) Express authority.

(c) Apparent authority.

(d) Both (a) and (b).

(e) Neither of the above options.

1.20. In Namibia, intellectual property rights are mainly created and regulated by the following source of law

(a) Statutes (Legislation).

(b) The Common law.

(c) Customary Law. (d) All ofthe above. (e) None of the above.

Each correct answer is worth 2 Marks

(40 Marks)

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Question 2

Mary is a teacher at Windhoek Central Primary School. She leases a flat for N$ 5000 per month from Rent-a-lot (Pty) Ltd. On Thursday evening of 18 September 2016 and totally out of the blue, Mary was approached by Linda, a sales rep for ABC cookware, at the flat. Mary was highly impressed by the demonstration that Linda had given to demonstrate the benefits of "oil free cooking." Linda therefore easily persuaded Mary to buy the cookware. The cookware costs N$ 15 OOO.There and then Mary decided to conclude an instalment sale transaction in terms of the Credit Agreements Act 75 of 1980 as amended in terms of which she paid a deposit and the balance of purchase price plus interest to be paid in 24 monthly instalments.

Advise Mary of the legal position in regard to the following separate situations:

2.1. On 01 October 2016, after reconsidering her financial position Mary realises that she cannot afford the cookware. Can she return the cookware to ABC cookware? (5 Marks)

2.2. Assume that Mary decides to keep the cookware. On 20 October 2016, Mary is unable to pay her instalment for the cookware. Can ABC cookware be entitled to repossess the cookware and cancel the contract summarily? (5 Marks)

2.3. Assume that ABC cookware had acted lawfully in obtaining the return of the cookware after Mary failed to pay her instalment. Does this result in permanent loss of possession of the cookware for Mary? (5 Marks)

2.4. Assume that Mary is still in possession of the cookware and paid her first instalment on 20 October 2016. On 30 October 2016, Mary is in arrears with her rent at the flat. Can Rent-a-lot (Pty) Ltd sell the cookware in sale in execution? (5 Marks)

(20 Marks)

Question 3

Answer the following short questions

3.1. Define the contract of purchase and sale. (3 Marks)

3.2. What are the duties of the purchaser in case of a threatened eviction in regard to a thing purchased in a contract of purchase and sale? (3 Marks)

3.3. Explain how the implied legal consequences of a sale in execution differ from an ordinary

sale. (5 Marks)

3.4. When will a purchaser in a contract of purchase and sale not be able to claim for a latent defect? (4 Marks)

3.5. In the absence of an express agreement regulating the authority and or power of an agent, such authority and or power(s) can be implied by operation of law. Compare the implied authority of company directors, the managing director and the members of a Close Corporation. (5 Marks)

(20 Marks)

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Question 4

Samuel is the owner of a 1995 Nissan Sentra. After a standard service he is informed that the rings in the engine are damaged and this may result in damage to the engine if not repaired. Outwardly there is nothing wrong with the motor vehicle. Samuel decides to sell the motor vehicle without having it repaired. He sells the motor vehicle to Peter without disclosing the fact that the vehicle is in need of repair. In order to inspect the vehicle Peter only walks around it and checks that there are no dents. A week after the contract is concluded the engine ceases. The garage owner advises him that the rings were damaged and the cost of the repairs to the engine as such would be N$ 7 000.00.

Advise Peter as to his rights and remedies, if any, he may have against Samuel. (10 Marks)

Question 5

On 20 October 2016 Salome bought 10 cases of wine from OK Bottles Store at N$ 300 per case. The parties agreed that the wine will be kept at OK Bottles Store and that Salome will fetch the wine on 22 October 2016 as that is when it will be her birthday. The night after the conclusion of the contract the cellar in which the wine was stored was destroyed by lighting. Upon investigation of the matter the owner of OK Bottles Store admitted that he had not yet separated the wine bought by Salome from the rest of the stock.

5.1. Who bears the risk for the loss of the wine? Give reasons for your answer. (5 Marks) 5.2. Assume that the owner of OK Bottles Store had already separated and counted out the

twenty cases of wine and marked them as wine bought by Salome. Would your answer in 4.1 be any different if the wine was stolen from OK Bottles Store as a result of the failure by the owner to lock the store the night of 20 October 2016? Give reasons for your answer. (5 Marks)

(10 Marks)

END OF PAPER Total: (100 Marks)

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