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An analysis of the evolution of the South African law on the warranty against latent defects
Dissertation (LLM)--University of Pretoria, 2014.
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| Format: | Thesis |
| Language: | English |
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University of Pretoria
2015
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| _version_ | 1867613463653646336 |
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| access_status_str | Open Access |
| author2 | Nagtegaal, Annelize |
| author_browse | Nagtegaal, Annelize |
| author_facet | Nagtegaal, Annelize |
| collection | Thesis |
| dc_rights_str_mv | © 2015 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Dissertation (LLM)--University of Pretoria, 2014. |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/46081 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:36:33.236Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2015 |
| publishDateRange | 2015 |
| publishDateSort | 2015 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/46081 An analysis of the evolution of the South African law on the warranty against latent defects Nagtegaal, Annelize Bauling, Andrea UCTD Warranty against latent defects Contracts of purchase and sale Transformative constitutionalism Common law development Consumer sales agreements Law and poverty Dissertation (LLM)--University of Pretoria, 2014. In this dissertation I analyse the transformation of the South African law on the warranty against latent defects. I trace the development from pre-classical Roman law through to the enactment of the Consumer Protection Act 68 of 2008 (“the CPA”). Society’s ever-changing economic requirements and moral ideals serve as the driving forces behind these continuous legal developments. Under Roman law the rules on latent defects initially applied to the sale of slaves. In contrast, modern South African law, as per the CPA and the values of the Constitution of the Republic of South Africa, 1996, specifically aims to protect the most vulnerable members of South Africa’s unequal society. The conservative approach adopted by the judiciary when adjudicating contractual matters hinders the transformation of the law of sale. Legal rules and legal thinking which reinforce traditional distributive patterns require reconsideration if societal-wide change, as demanded by the Constitution, can be imagined and accomplished. If the economic role of the contract and its power to divide and (re)distribute wealth is viewed as important, the link between poverty and the contract, and by association the consumer agreement, cannot be ignored. Contracts, and specifically basic consumer and credit agreements, are often concluded in order to facilitate survival in our current social reality. The law as it relates to consumer protection and the sale of defective goods is directly related to the contract’s role in wealth distribution. Where sales agreements are in question, the unequal bargaining power of the parties can impede the purchaser/consumer even further. The consumer’s right to good quality and safe goods creates uncertainty regarding whether or not the seller’s liability under the common law warranty against latent defects may be excluded in instances where the CPA and the common law apply simultaneously. This uncertainty, if addressed as being part of the national project of transformative constitutionalism, the only conclusion that can be drawn is that the exclusion of the seller’s liability is, paradoxically, detrimental to the very subject that the CPA and Constitution aim to protect, namely the purchaser. tm2015 Private Law LLM Unrestricted 2015-07-02T11:06:46Z 2015-07-02T11:06:46Z 2015/04/16 2014 Dissertation Bauling, A 2014, An analysis of the evolution of the South African law on the warranty against latent defects, LLM Dissertation, University of Pretoria, Pretoria, viewed yymmdd <http://hdl.handle.net/2263/46081> A2015 http://hdl.handle.net/2263/46081 en © 2015 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD Warranty against latent defects Contracts of purchase and sale Transformative constitutionalism Common law development Consumer sales agreements Law and poverty An analysis of the evolution of the South African law on the warranty against latent defects |
| title | An analysis of the evolution of the South African law on the warranty against latent defects |
| title_full | An analysis of the evolution of the South African law on the warranty against latent defects |
| title_fullStr | An analysis of the evolution of the South African law on the warranty against latent defects |
| title_full_unstemmed | An analysis of the evolution of the South African law on the warranty against latent defects |
| title_short | An analysis of the evolution of the South African law on the warranty against latent defects |
| title_sort | analysis of the evolution of the south african law on the warranty against latent defects |
| topic | UCTD Warranty against latent defects Contracts of purchase and sale Transformative constitutionalism Common law development Consumer sales agreements Law and poverty |
| url | http://hdl.handle.net/2263/46081 |