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No common law application

11 March 2010

At common law a seller is bound to deliver the item sold to the buyer.

If it is immovable property it is normally the seller's duty to pay whatever is owing in order to obtain a clearance certificate which is required by the Local Government: Municipal Systems Act.

Any deviation from this obligation should be clearly recorded. A provision in an agreement which requires the purchaser to pay the costs of "and incidental to" transfer of the property does not shift the obligation to the purchaser.

Despite the simple wording of section 20) of the Alienation of land Act litigation continues. The section reads "no alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority".

While inelegance, clumsy draftmanship or loose use of language in a commercial document purporting to be a contract will not impair its validity as long as one can find with reasonable certainty the terms necessary to constitute a valid contract, the manner of payment is normally a material term and an agreement which does not provide the method and date of payment will not be valid and enforceable.

The common law principle that if no time for payment is specified it must be made against delivery does not apply to a sale of land.

Republished with permission from Eversheds Law News

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