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CML112S- COMMERCIAL LAW 1B-1st Opp - NOV 2022 |
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nAmlBIA unlVERSITY
OF SCIEnCE Ano TECHnOLOGY
FACULTYOF COMMERCE,HUMAN SCIENCESAND EDUCATION
DEPARTMENT OF SOCIAL SCIENCES
QUALIFICATIONS: MARKETING, COMMERCE, BUSINESS ADMINISTRATION, OFFICE
MANAGEMENT & TECHNOLOGY, PUBLIC ADMINISTRATION
QUALIFICATION CODES: VARIOUS
COURSE CODE: CML 112 S
SESSION: NOVEMBER 2022
DURATION: 2 HOURS
LEVEL: 5
COURSE NAME: COMMERCIAL LAW 1B
PAPER: THEORY
MARKS: 100
FIRST OPPORTUNITY EXAMINATION QUESTION PAPER
EXAMINER(S) Ms E Kuugongelwa, Ms R Van Zyl, Ms M Saayman
MODERATOR: Ms W Shakela
INSTRUCTIONS
1. This paper consists of 7 (seven) questions.
2. All questions are compulsory.
3. All questionsmust be answered in your ExaminationBook
4. Read all questions carefully before answering.
5. Incorrect spelling and illegible handwriting may prevent mark allocation.
PERMISSIBLE MATERIALS
None
THIS QUESTION PAPER CONSISTS OF 9 PAGES (Including this front page)
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QUESTION 1
Choose a correct answer from the options given in each of the following statements. Only write
down the letter with a correct answer for each statement. Use BLOCKCAPITALLETTERS.(40)
1.1 The difference between the passing of the risk rule and the rule of impossibility of performance
can be explained as follows:
A. The risk rule is an exception to the general principles of the law of contract.
B. The rule of impossibility of performance states that the contract terminates in the event of
supervening impossibility of performance.
C. The rule of impossibility of performance, i.e. the fact that the contract terminates in the event
of supervening impossibility of performance does not apply to a contract of purchase and sale,
whilst the risk rule states that the seller will be relieved of his/her duty to deliver if
performance becomes impossible, the purchaser will still be liable for the purchase price if
the contract is perfecta.
D. The risk rule states that the seller has a duty to care for the merx from the time of the
conclusion of the contract until the time of delivery.
E. The risk rule will not apply if the parties agree that the risk would not pass to the purchaser.
1.2 When a seller delivers the merx sold to the purchaser, the
disturbance in his possession by virtue of the:
A. Guarantee against latent defects.
B. Guarantee against eviction.
C. Passing of the risk rule.
D. Actio empty.
E. None of the above.
purchaser
is protected
against
1.3 The following statement is not true:
A. A voetstoots sale means that the thing is sold as good or as bad as it is.
B. A voetstoots sale is never implied, the parties must expressly agree on it.
C. Goods sold at a sale in execution are sold voetstoots.
D. The seller can never be liable for any latent defects if a thing is sold voetstoots.
E. None of the above.
1.4 Which of the following statements is false in relation to a contract of sale?
A. A seller need not guarantee that he is the owner of the things sold but needs to provide the
purchaser with a warranty that he will receive the merx free from encumbrances.
B. An implied warranty against eviction guarantees that no third party with a better title will
deprive the purchaser of his possession of the merx.
C. Where both the seller and buyer believe a thing to be sold exists but it later transpires that
the thing doesn't, a valid contract is nevertheless concluded.
D. There cannot be a valid contract of sale if the parties concerned do not reach agreement about
the price.
E. Neither one of the above options.
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1.5 A and B agree that A will buy B's bicycle for N$ 500. The parties further agree that the risk will only
pass to A after delivery of the bicycle to A. The arrangement relating to the passing of risk:
A. Is invalid as the sale is perfecta.
B. Is valid provided A pays the purchase price on time.
C. Is invalid as the passing of the risk is an essential characteristic of the contract of sale.
D. ls valid as the passing of the risk can be arranged by mutual agreement.
E. Neither one of the above options.
1.6 Which of the following is an example of delivery by longa manu?
A. X lends a horse to Y. While the horse is in Y's possession, they agree that Y will buy it from X.
The horse remains in Y's possession.
B. The merx is pointed out and made available to the purchaser because it is too large and too
heavy to be physically handed over.
C. X sells her horse to Y. They agree that X will hire the horse from Y. The horse thus remains in
X's possession.
D. X sells her horse to Y. She delivers the horse by driving it to Y's farm in her trailer and allowing
Y to lead the horse to its stable.
E. Neither one of the above options.
1.7 Jack purchased John's VW Beetle. John gives Jack the keys to the motor vehicle upon payment of
the purchase price of N$ 10 ODO.OD.This form of delivery is known as:
A. Registration
B. Actual delivery
C. Symbolic delivery
D. Cession
E. Delivery by the long hand
1.8 One of the requirements for the transfer of ownership when a contract of sale has been entered
into, is (indicate the correct statement):
A. That the intention exists that ownership should pass
B. That the merx must be free from latent defects.
C. The actual delivery must take place.
D. That the purchase price must be paid in cash.
E. That the seller must give the purchaser a warranty against eviction.
1.9 The Credit Agreements Act 75 of 1980 only applies to: (indicate the correct statement)
A. Contracts for the sale or lease of movable goods.
B. Contracts for the sale of immovable goods.
C. Contracts for the sale or lease of immovable goods.
D. Contracts for the sale of any item that a purchaser wishes to buy on credit.
E. Contracts for the sale of movable goods.
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1.10 When the buyer enters into a credit transaction, s/he must pay a certain percentage of the
purchase price as initial amount at the conclusion of the contract. The transaction will not be binding
until this amount is paid. This amount is called:
A. Lay- by.
B. Deposit.
C. Receipt.
D. Proof of payment.
E. Proof of debit.
1.11 Section 12 of the Credit Agreements Act 75 of 1980 provides as follows:
A. The Credit Agreement must contain a clause stating that the contract was signed at the
premises of the credit grantor.
B. The initial payment must first be paid before the credit agreement will be valid.
C. The credit receiver may not trade in goods as a deposit.
D. The credit receiver shall be entitled to recovery of the goods within 30 days in the event where
the credit grantor takes matters in his own hands and repossesses goods by any other means
than a court order.
E. The credit receiver may cancel within 5 days if the agreement is entered into as a result of the
initiative of the credit grantor or the credit receiver signed the agreement at a place, which is
not the normal place of business of the credit grantor.
1.12 Which of the following pieces of legislation is not a recognized source of labour law in Namibia?
A. Namibian Constitution, Act 1 of 1990
B. Social Security Act 34 of 1994
C. Affirmative Action Act 29 of 1998
D. Maintenance Act 3 of 2009
E. Employees' Compensation Act 30 of 1941 (as amended)
1.13 In terms of the Labour Act 11 of 2007 an employee is entitled to five (5) working days
compassionate leave during each period of twelve months for the death or serious illness of family.
Which of the following persons will not be considered as family for compassionate leave in terms of
the Labour Act?
A. Children including adopted children.
B. Adopted children.
C. Grandparents
D. Brother/Sister in Law
E. Father/Mother in Law
1.14 Section 25 of the Labour Act 11 of 2007 deals with compensation leave with full remuneration. A
worker is entitled to the following number of compensations leave days:
A. 5 working days per year
B. 5 working days after a period of 6 consecutive months of employment
C. 10 working days after a period of 12 consecutive months of employment per year
A. 15 consecutive after a period of 12 consecutive months of employment per year
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D. None of the above.
1.15 In terms of Section 30 of the Labour Act 11 of 2007, the period for notice of resignation for an
employee who worked for a period of 8 (eight) months is:
A. One Working Day
B. One month
C. One Week
D. One day including Saturday and Sunday
E. No notice required.
1.16 In terms of Section 33 of the Labour Act 11 of 2007, a dismissal must be substantively and
procedurally fair. Which statement is correct?
A. In accordance with Section 30 of the Labour Act 11 of 2007
B. For a fair and valid reason and according to a fair procedure.
C. If an employee is caught in the act of stealing from the employer
D. If the illness of an employee takes place for an unreasonably long period;
E. Neither one of the above options.
l.17The essentialia of a contract of employment are:
A. Nature of service, remuneration and safe working conditions
B. Nature of service and remuneration
C. Nature of service, remuneration and subordination to the employer
D. The employer has authority and control over the employee and will prescribe what, how and
when the work should be done.
E. Nature of service, remuneration and employer will provide the tools to enable the employee
to render the service.
1.18 The Landlord's Tacit hypothec for rental arears is applicable to the following:
A. Movable and Immovables
B. All movables excluding those things bought on credit
C. All movables brought onto the leased premises.
D. Only the lessee's property.
E. Degree of performance of the movable property on the premises.
1.19 The duties of the lessor in a contract of lease are the following. Choose the incorrect duty:
A. Delivery of the thing
B. Maintenance
C. Rates and Taxes
D. Undisturbed use and enjoyment of the leased article
E. Payment of the utility expenses like water and electricity
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1.20 Which of the following is not included under the study of intellectual property law?
A. Trade Marks
B. Business Management
C. Unfair Competition
D. Patents
E. Rights in Invention
Each correct answer is worth 2 Marks
[40 Marks]
QUESTION2
In each of the following instances, state whether a valid contract of purchase and sale has been
formed. Motivate your answer. (10)
NOTE: No marks will be awarded for yes/no without a proper motivation.
2.1 Thomas steals David's motorbike and sells it to Peter for the amount of N$ 25 000.00. Peter is
unaware of the fact that the motorbike is a stolen one.
(2)
2.2 Lizel owns land where she grows flowers and agrees to sell the whole crop of flowers. She agrees
to sell the whole crop of flowers she hopes to produce at the end of the season to a flower shop by
the name of Flowered Earth for N$ 20 000. Unfortunately, Lizel did not have a harvest since her flower
crops were damaged by the floods.
(2)
2.3 Daniel and Jack agree in a WhatsApp message that Daniel will buy Jack's apartment for N$2
milllion.
(2)
2.4 Mary sells her John Deere Tractor to her neighbour for N$ 300 000. The neighbour is under the
impression that he is merely renting it.
(2)
2.5 Saima sells her hand bang to Mary for N$ 500.00. They agree that, instead of paying her, Mary will
do her Mathematics assignment for her.
(2)
[10 Marks]
QUESTION3
Decide whether the following statements are true or false and write either true of false in respect of
each statement next to the respective question number in your examination book. No motivation
required. (10)
3.1 The passing of the risk rule applies to a contract of employment.
(1)
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3.2 When a seller delivers the merx sold to the purchaser, he undertakes to give the purchaser
ownership of the thing sold.
(1)
3.3 All contracts in our law must always be in writing to be valid.
(1)
3.4 In a sale in execution, the purchaser is not protected by the guarantee against latent defects.
(1)
3.5 Labour legislation is applicable to locatio conductio operis.
(1)
3.6 The duty of the seller to keep the thing in safe custody is the only duty implied in a contract of
sale.
(1)
3.7 The Credit Agreement Act 75 of 1980 was passed for the protection of credit receivers only.
(1)
3.8 There are two essentialia for a contract of employment.
(1)
3.9 A 17-year-old girl is allowed to do night work.
(1)
3.10 The Labour Act 11 of 2007 lays down minimum wages payable to all employees in Namibia.
(1)
Each correct answer is worth 1 Mark
[10 Marks]
QUESTION4
Answer the following short questions. (15)
4.1 How is delivery of immovable property effected to a purchaser?
(1)
4.2 There are five (5) instances where the purchaser will not have a right to use action redhibitoria
(claim for cancellation and restitution) as a remedy for a latent defect. Provide these five (5) instances.
(S)
4.3 Is an oral credit agreement in terms of the Credit Agreements Act 75 of 1980 invalid?
(2)
4.4 Explain how the "cooling off period" in terms of Section 13 of the Credit Agreements Act 75 of
1980 is calculated.
(3)
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4.5 A contract of lease is distinguished by certain essentialia. State these essentialia.
(3)
4.6 Which of the two parties in a contract of insurance bears the duty of disclosure?
(1)
[15 Marks]
QUESTION 5
Elizabeth's only source of income is that which is generated from baking cakes from a home bakery.
She has an agreement with the owner of "Mugg and Bean" to deliver 50 fresh muffins each day.
Elizabeth usually needs to bake the muffins until 04:00 in the morning in order to comply with her
agreement.
Elizabeth orders all the eggs she needs for the baking from Tom, a poultry farmer.
One night at 23h00 Elizabeth discovers that all the eggs she bought that day from Tom were rotten
and she was therefore unable to deliver her 50 muffins the next day. As a result, she lost the contract
with Mugg and Bean.
5.1 Does Elizabeth have any claim against Tom, the poultry farmer? Explain.
(6)
5.2 Suppose the eggs were sold voetstoots and reconsider your answer in 5.1.
(4)
[10 Marks]
QUESTION 6
Peter buys goods from Solomon subject to the Credit Agreements Act. Discuss the legal position in the
following instances:
6.1 Peter fails to pay the deposit.
(1)
6.2 Solomon lends the money to Peter to pay the deposit.
(1)
6.3 Peter fails to make payment of an instalment on time. Can Solomon cancel the contract
immediately and take back the goods he sold to Peter?
(6)
6.4 What requirements are necessary in terms of Section 13 of the Credit Agreements Act in
order for the right of cooling-off to exist?
(2)
[10 Marks]
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QUESTION 7
Tangeni is employed by Eagle Eye Security and is instructed by his employer to guard a house whilst
the owners left for vacation. Around 03:00 in the early morning hours of 26 December 2021, Tangeni
heard suspicious noises and decided to fire warning shots as he suspected a break in. At the same
time, a motor vehicle was passing by the house, and the bullet accidently hit the motor vehicle and
instantly killed the driver. The other passengers were rushed to the hospital for treatment. Will the
surviving passengers of the motor vehicle be able to institute an action against Eagle Eye Security for
the actions of Tangeni?
(5)
[5 Marks]
[Total 100 Marks]
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