Meyer v Hessling (Ackermann A.J.A.) (SA 7 of 1992) [1991] NASC 8 (2 December 1991)

Meyer v Hessling (Ackermann A.J.A.) (SA 7 of 1992) [1991] NASC 8 (2 December 1991)

Clause 7 of the deed of sale does not constitute a prohibited pactum commissorium because the rationale for the prohibition in the case of pledge and mortgage does not apply to contracts of sale where the property is mortgaged to secure the purchase price. The purchaser is not in a weak financial position akin to a pledgor, and public policy considerations justifying the prohibition are absent.

Citation
[1991] NASC 8
Parties
Appellant: Eckhardt Meyer; Respondent: Karl-Heinz Hessling
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
2 December 1991
Case Number
SA 7 of 1992
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
appeal dismissed
Legal Topics
Pactum Commissorium, Mortgage, Pledge, Lex Commissoria, Cancellation of Sale, Restitution
Source Language
English
Contract Law Property Law Pactum Commissorium Mortgage Pledge Lex Commissoria Cancellation of Sale Restitution

Case Brief

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Parties

Eckhardt Meyer

Appellant

Karl-Heinz Hessling

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether clause 7 of the deed of sale constitutes a prohibited pactum commissorium and is unenforceable in law

Ratio Decidendi

Clause 7 of the deed of sale does not constitute a prohibited pactum commissorium because the rationale for the prohibition in the case of pledge and mortgage does not apply to contracts of sale where the property is mortgaged to secure the purchase price. The purchaser is not in a weak financial position akin to a pledgor, and public policy considerations justifying the prohibition are absent.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs, including costs of respondent consequent upon employment of two counsel.