nAm I B I A Un IVERS ITV OF SCIEnCE AnD TECHnOLOGY

Faculty of Human Sciences

Department of Social Sciences

13 Scorch Street Private Bag 133BB 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, Business Administration, Office Management & Technology, Public Administration & Commercial Advanced Training Scheme (CATS 1)

QUALIFICATION CODE: Various LEVEL: n/a

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

DATE: January 2017

DURATION: 2 Hours MARKS: 100

SUPPLEMENTARY /SECOND 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 SIX 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 options given in each of the following statements. Only write down the letter with a correct answer for each statement.

1.1. In terms of the Labour Act 11 of 2007 as amended, an employee is entitled to the following number of sick leave days in a 3 year cycle ifs/he works 5 (five) days in a week:

(a) 24 consecutive days. (b) 30 calendar days. (c) 30 working days. (d) 40 calendar days. (e) None of the above.

1.2. The concept of agency arises when:

(a) A person, known as the agent, performs a juristic act on behalf of another person known as the principal.

(b) A person, known as the principal, performs a juristic act on behalf of another person known as the agent.

(c) A person (known as the agent) can perform a juristic act, with the necessary authority, on behalf of another person (known as the principal).

(d) A person with the necessary authority, known as the agent concludes a contract on behalf of another, known as the principal, and the principal ratifies the contract.

(e) A person known as the agent is not bound on the contract, but on the warranty of authority.

1.3. In a bill of exchange, the party to whom payment is required to be made is known as

(a) The Payee. (b) The Drawer. (c) The Drawee. (d) The Bank. (e) Neither ofthe above options.

1.4. The first delivery of a bill complete in form to a person who takes it as a holder is known as:

(a) Delivery. (b) Issue. (c) Negotiation. (d) Transfer. (e) Indorsement.

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1.5. A contract of employment may be terminated by means of notice of termination. The absolute minimum notice period stipulated by section 30 of the Labour Act 11 of 2007 is

(a) 1 week. (b) 2 weeks. (c) 1 working day. (d) 1 month. (e) Neither of the above options.

1.6. The Credit Agreement Act 75 of 1980 as amended will not apply to one of the following

transactions:

(a) Where the Minister declared the goods that are sold or leased to fall within the application of the Act.

(b) The purchase price is to be paid in instalments at a fixed or determinable future date. (c) When the agreement is concluded for less than 3 months. (d) When the goods are not sold or leased for the sole objective of selling or leasing the

goods to others. (e) None of the above options.

1.7. The following statement is not true

(a) A voetstoots ("as is")- sale means that the thing is sold as good or as bad as it is. (b) The seller can never be held liable for any latent defects if a thing is sold voetstoots. (c) A voetstoots ("as is")- sale is never implied, the parties must expressly agree on it. (d) Goods sold at a public auction are sold voetstoots. (e) None of the above options.

1.8. With regard to the provisions of the Credit Agreements Act 75 of 1980 as amended, the following is true

(a) An oral agreement is invalid. (b) An agent can act on behalf of both the credit receiver and credit grantor. (c) The period of a credit agreement can be left undetermined. (d) The initial payment (deposit) must first be paid before the credit agreement will be valid. (e) None of the above options.

1.9. A contract in which the merx is sold as a hope or expectation, expected to come into existence in future where the purchaser must pay the price regardless of whether the expectation materialises or the extent to which it materialises, is known as

(a) Emptio rei speratae. (b) Sale by sample. (c) Sale by description. (d) Emptio spei. (e) Res sua.

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1.10. When the seller delivers the merx sold to the purchaser, the purchaser is protected against disturbance in his possession by virtue of the:

(a) Guarantee against latent defects. (b) Passing of the risk rule. (c) Actio empti. (d) Guarantee against eviction. (e) None of the above.

1.11. Fenny buys and pays for a second-hand motor vehicle from Hot Wheels Garage, but leaves it with the garage to have new tyres put on the on the car. Delivery took place in the form of:

(a) Actual delivery. (b) Constitutum possessorium.

(c) Registration in the name ofthe purchaser at the NATIS office. (d) Delivery with the long hand. (e) Symbolical delivery.

1.12. The following statement is true:

(a) A contract of purchase and sale is not perfecta if it is subject to a resolutive condition.

(b) A contract of purchase and sale is perfecta if it is subject to a suspensive condition.

(c) A contract of purchase and sale is perfecta if the price is fixed or determinable, the thing is

specified and the parties have the intention to conclude a contract of purchase and sale.

(d) After a conclusion of a contract of purchase and sale, the purchaser bears the risk for any

accidental damage to the thing from the moment the contract is perfecta until the time of

delivery.

(e) The risk doctrine applies to all contracts.

1.13. Anna borrows Markus' CD player. She likes it so much that she decides to buy it. The parties conclude a contract of purchase and sale. Ann a gives the money to Markus and retains the CD player. This form of delivery is known as:

(a) Constitutum possessorium (b) Actual delivery.

(c) Longa manu. (d) Symbolical delivery. (e) Neither of the above options.

1.14. In terms of the Labour Act 11 of 2007 as amended, an employee is entitled to the following days of annual leave:

(a) 24 consecutive days.

(b) 30 calendar days.

(c) 36 consecutive days.

(d) 40 calendar days

(e) None ofthe above.

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1.15. Delivery of immovable property is effected by means of:

(a) By long hand.

(b) Cession.

(c) Registration in the name of the purchaser at the Deeds office.

(d) Actual delivery.

(e) None of the above.

1.16. A seller will not be liable for eviction of the purchaser in a contract of purchase and sale if:

(a) He does not hand over the merx to the person posing the threat.

(b) He notifies the seller of the ensuing threat.

(c) Eviction occurred without the fault ofthe seller.

(d) He conducts a strong defence in protecting the merx.

(e) None ofthe above.

1.17. The "cooling-off" period is available to the purchaser when:

(a) The purchaser has requested the seller to visit him in order to purchase goods from the

seller.

(b) The contract is signed at the home ofthe purchaser as a result of the initiatives of the seller.

(c) The contract is signed at the business premises of the seller and as a result of the initiative

of the purchaser.

(d) The seller called the purchaser to come in and view the articles on sale.

(e) None ofthe above.

1.18. If a contract of purchase and sale is subject to a suspensive condition, the risk passes to the purchaser when:

(a) The merx is delivered to the purchaser.

(b) The condition is fulfilled .

(c) The contract is signed.

(d) The merx is damaged due to an accident.

(e) None of the above.

1.19. If a credit agreement is not reduced to writing the contract is

(a) Valid.

(b) Void.

(c) Voidable.

(d) Valid but results in a criminal offence.

(e) None of the above.

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1.20. A purchaser in a contract of purchase and sale will not be able to claim for a latent defect if

(a) All the five (5) requirements of latent defect are not met.

(b) The purchaser expressly or tacitly renounced any right of recourse in respect of latent

defects.

(c) The thing was bought at a sale in execution.

(d) The thing was sold voetstoots.

(e) All ofthe above.

Each correct answer is worth 2 Marks

Question 2

Answer the following short questions

2.1. What is meant by a sale in execution?

(40 Marks)

(3 Marks)

2.2. When will a seller in a contract of purchase and sale not be protected by a voetstoots clause? (2 Marks)

2.3. What goods can be attached under the landlord's tacit hypothec? (5 Marks)

2.4. Which things can form the subject matter of a contract of purchase and sale?

2.5. What are the essentialia ofthe contract of purchase and sale?

2.6. Name the two essentialia of the contract of employment.

Question 3

Distinguish between a contract of service and that of an independent contractor.

Question 4

(5 Marks)

(3 Marks)

(2 Marks) {20 Marks)

(10 Marks)

Frederick bought an antique oak coffee table from Suzie. Soon thereafter he hired a carpenter who cleaned and varnished it for him. Five months later, a guest who was visiting him, recognized the coffee table as her own. She stated that it had disappeared from her home when her house was robbed in June 2016. Frederick is not prepared to hand the coffee table over to the guest. Frederick t hen approaches you for advice. Advise Frederick. (10 Marks)

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Question 5

Which forms of delivery occur in the following instances? YOU ARE NOT REQUIRED TO MOTIVATE

YOUR ANSWERS

5.1. Sakeus uses a truck to deliver a heap of sand at the house of Bonga, who bought the sand. {2 Marks)

5.2. Shiifa buys and pays for a garment. The garment is left with the Seller for alterations. {2 Marks)

5.3. Puvy rents Anna's car for N$ 2 500 a month. At the end of October, Puvy buys the car. {2 Marks)

5.4. The delivery of a key of the warehouse to the purchaser in which the stock sold is stored. (2 Marks)

5.5. Rosa buys a herd of cattle from Costa. Costa points out a herd of cattle to Rosa so that Rosa can exercise physical control. (2 Marks)

(10 Marks)

Question 6

State whether each of following statement is true or false.

6.1. An employee must obey all lawful and reasonable instructions ofthe employer.

6.2. In terms of the common law, employers are only obliged to provide their employees with healthy working conditions.

6.3. An employer may in some instances require an employee to work a spread over of more than 12 (twelve hours).

6.4. An employer is not obliged to furnish an employee who has been dismissed from work with a certificate of service.

6.5. Insolvency of the principal terminates the relationship between the principal and agent.

END OF PAPER

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Each correct answer is worth 2 Marks (10 Marks)

Total: (100 Marks)