1. discuss the res perit domino rule in a contract of sale.
2. distinquish between a voetstoot clause and a dictum et promissum.
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1. Res perit domino means the owner bears the risk of loss. In a contract of sale, the vendor binds himself to deliver a thing sold to the vendee for a price or consideration in money or its equivalent. In a contract of sale, ownership over the thing sold is transferred by delivery, not when payment is made. Hence, until there is delivery, title over the goods is retained by the vendor and in case of loss, the vendor suffers alone. If payment has been made, the vendor must return it under the principle of solutio indebiti. But if there is delivery then title over the goods has been transferred and the vendee as the owner will suffer in case of loss.
The general principle of commercial transaction is that “Res perit dominó”, critically evaluate this ascertion with judicial authorities
I want to know about Res Perot domino
1. The res perit domino rule in a contract of sale is a Latin term that means "the thing perishes with the owner." This rule determines the allocation of risk and responsibility for the loss or damage to the sold goods between the buyer and the seller.
To discuss this rule in a contract of sale, you can follow these steps:
- Understand the context: Familiarize yourself with the specific contract or legal case you are analyzing where the rule is relevant. This will help you gain a clear understanding of the facts and circumstances involved.
- Identify the parties: Determine who the buyer and the seller are in the contract. This is essential because the rule determines the impact of loss or damage on each party.
- Ascertain the nature of the goods: Determine the type and condition of the goods being sold. The rule may have different implications depending on whether the goods are generic (fungible) or specific (non-fungible).
- Analyze the contract terms: Study the contractual provisions regarding risk allocation, passing of title, and the seller's obligations. These can include clauses related to warranties, delivery terms, and insurance requirements.
- Apply the res perit domino rule: Based on the analysis of the above factors, determine how the rule applies. Generally, the rule states that if the risk has passed to the buyer, the seller is not liable for any subsequent loss or damage to the goods.
- Consider exceptions or statutory provisions: Be aware of any exceptions to the rule, as some legal systems may provide specific protections to buyers, especially in consumer transactions. Additionally, statutory laws might modify the application of the rule.
2. Distinguishing between a voetstoot clause and a dictum et promissum requires an understanding of contract law and their respective definitions:
- Voetstoot clause: A voetstoot clause is commonly used in contracts of sale, particularly for second-hand goods. This clause means "as is" or "in the current condition" and protects the seller from certain latent defects or faults in the sold goods. It implies that the buyer is purchasing the goods at their own risk, without any recourse against the seller for such defects discovered after the sale.
To distinguish a voetstoot clause, follow these steps:
1. Read the contract: Identify if there is a specific clause within the contract relating to the sale of goods.
2. Look for the language: Search for terms like "voetstoot," "as is," or "without warranty." These terms generally indicate that the seller is not providing any guarantees or assurances regarding the condition of the goods.
3. Determine the scope: Consider the breadth of the clause. Some voetstoot clauses may exclude liability for both obvious and latent defects, while others may only exclude liability for hidden or latent defects.
4. Assess applicability: Assess whether the voetstoot clause is enforceable in your jurisdiction as laws may vary.
- Dictum et promissum: Dictum et promissum is a Latin term that means "said and promised." It refers to a contractual term where the seller explicitly guarantees the condition or quality of the goods being sold. Unlike a voetstoot clause, a dictum et promissum clause implies that the seller is providing an assurance or warranty regarding the goods' characteristics.
To distinguish a dictum et promissum clause, follow these steps:
1. Read the contract: Carefully review the language of the contract to identify any clauses related to warranties or guarantees.
2. Look for express statements: Seek out explicit promises made by the seller regarding the condition, quality, or characteristics of the goods.
3. Assess the scope: Consider the extent of the warranties or guarantees provided by the seller. This can vary from warranties against specific defects to broader assurances of overall quality.
4. Evaluate legal implications: Determine if the jurisdiction you are in imposes any statutory requirements or restrictions on these types of warranties or guarantees.
By carefully examining the language and intentions of the contract, you can differentiate between a voetstoot clause and a dictum et promissum provision.