Sale and the warranty of title
| Jurisdiction | South Africa |
| Citation | 2019 Acta Juridica 141 |
| Published date | 24 December 2019 |
| Pages | 141-164 |
| Date | 24 December 2019 |
| Author | None |
141
Sale and the warranty of title*
KENNETH REID†
Both Scotland and South Africa received the rule of Roman law in
terms of which a seller of property was obliged to maintain the buyer
in possession but not obliged to make the buyer owner; there was,
in other words, a warranty against eviction rather than an outright
warranty of title. In both Scotland and South Africa, too, there has
since been a move in the direction of a warranty of title so that today
there is an ungainly, and possibly unstable, combination of the two
types of warranty. This essay traces and compares the development of
the implied warranty in respect of title in Scotland and South Africa.
I INTRODUCTION
(1) Common beginnings
In contracts of sale is there a tacit warranty of the seller’s title, and
hence, following the act of transfer, a corresponding warranty of
the title of the buyer as well? The answer, according to Viscount
Stair in The Institutions of the Law of Scotland (1693), one of the
foundational texts of Scots law, is an unequivocal ‘no’.1 No doubt,
in the case of barter, each party must make the other owner; but as
for sale, the seller’s obligation, Stair says, is conned to ‘delivery of
the goods or things bought, with the obligation of warrandice in
case of eviction’. No authority is given by Stair for this view, but it
obviously derives from Roman law, and in particular from D 19.4.1
where Paul, like Stair, contrasts sale with barter:
The buyer is liable on sale if he does not make the recipient the owner
of the money, whereas the seller need only obligate himself in the event
* I am grateful to Tjakie Naudé for commenting on a section of this essay, and
to Marius de Waal and Andrew Sweeney for providing materials on South African
law that were unavailable in Edinburgh.
† MA (Cantab) LLB (Edin) LLD (hc) (Cape Town) CBE FBA FRSE; Professor
Emeritus of Scots Law, University of Edinburgh; Fellow of the Stellenbosch
Institute for Advanced Study (STIAS); Writer to Her Majesty’s Signet.
1 J Dalr ymple, Viscount Stair The Institutions of the Law of Scotland 6 ed by
DM Walker (1981). The r st edition of this work was published in 1681 but written
20 years earlier. The most recent, sixth, edition is based on the second edition of
1693, which was the last prepared by Stair himself.
2019 ACTA 141
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142 PRIVATE LAW IN A CHANGING WORLD
of an eviction, deliver the possession, and remain free of bad faith, and
thus he owes nothing if there is no eviction from the object.2
D 19.4.1 is likewise the text relied on by Johannes Voet, writing
shortly after Stair, for one of the clearest statements of the seller’s
title obligation in Roman-Dutch law: ‘If he [the seller] is of good
faith, he is held liable to make good nothing more than undisturbed
possession; and is only held fast to damages if there has been eviction
from the property’.3
These, then, are common beginnings for both Scots law and
Roman-Dutch (and later South African) law. In this essay I seek to
trace the development of the implied warranty in respect of title in
Scotland and South Africa, to chart similarities and dierences, to
examine some of the reasons for them, and to draw some comparative
conclusions.4 I will also say something about the overarching theme
of the present volume: pr ivate law in a changing world.
These, I hope, are topics that will be of interest to Danie Visser,
in whose honour this volume has been written. Among his many
scholarly achievements, Danie has contr ibuted notably to the
comparative study of private law in Scotland and South Afr ica,
having been both an instigator and an editor of the two major
projects that have taken place so far.5 Danie has also been a kind
and generous colleague for many in Scotland. This essay is a modest
tribute to a formidable scholar and a much-valued friend.
2 Paul On the Edict Book 32: ‘Emptor enim, nisi nummos accipientis fecerit, tenetur
ex vendito, venditori sucit ob evictionem se obligare possessionem tradere et purgari dolo
malo, itaque, si evicta res non sit, nihil debet.’ Translation A Watson (ed) The Digest of
Justinian (1985).
3 J Voet Commentarius ad Pandectas XVIII.1.4: ‘Nam si in bona de sit, nihil praeter
vacuam possessionem praestare tenetur; nec ad id quod interest aliter obstrictus est, quam si
res evicta fuerit.’ The English translation used is by Percival Gane (1956).
4 For an earlier comparative treatment, see R Evans-Jones & A Smith ‘Sale’
in R Zimmermann, D Visser & K Reid (eds) Mixed Legal Systems in Comparative
Perspective: Property and Obligations in Scotland and South Africa (2004) 271, 273–84.
For reasons of space, it will not be possible in this essay to consider the warranty
insofar as it concerns limited real rights and other encumbrances of title.
5 Zimmer mann, Visser & Reid (n 4); E Reid & D Visser (eds) Private Law and
Human Rights: Bringing Rights Home in Scotland and South Africa (2013). Danie has
himself written enthusiastically about the background: see D Visser The University
of Cape Town Law Faculty: A History 1859–2004 (2004) 131–4.
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