Barclays Western Bank Ltd. v Ernst (158/86) [1987] ZASCA 90; [1988] 1 All SA 274 (A) (22 September 1987)

Barclays Western Bank Ltd. v Ernst (158/86) [1987] ZASCA 90; [1988] 1 All SA 274 (A) (22 September 1987)

The court held that the master discounting agreement governed the transaction and required written variation for any departure from its terms. There was no evidence of a written variation or conduct amounting to a departure from the agreement. The cession of the trader's rights and ownership of the vehicle to the appellant was effected only upon payment on 26 May 1981, as stipulated in the agreement. By that date, Van Coller was no longer in possession of the vehicle, and thus the requirements for transfer of ownership by attornment were not met. The appellant's claim that it acquired ownership prior to payment failed, and the trial court's order of absolution from the instance was correct.

Citation
[1987] ZASCA 90
Parties
Appellant: Barclays Western Bank Limited; Respondent: Irene Ernst
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 September 1987
Case Number
158/86
Procedural Posture
Civil Appeal / Appeal Against Absolution From the Instance
Outcome
Appeal dismissed with costs.
Judges
Rabie, Joubert, Botha, Jacobs, Nestadt
Legal Topics
Transfer of Ownership, Cession, Attornment, Master Discounting Agreement
Commercial and Corporate Civil Procedure Transfer of Ownership Cession Attornment Master Discounting Agreement

Case Brief

Summary, issues, holding and outcome

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Parties

Barclays Western Bank Limited

Appellant

Irene Ernst

Respondent

Procedural Posture

Civil Appeal / Appeal Against Absolution From the Instance

Legal Issues

  1. 1 Whether ownership of the vehicle passed from the trader to the appellant by way of attornment before possession was lost.
  2. 2 Whether the cession of rights and ownership under the master discounting agreement was effected prior to payment.
  3. 3 Whether conduct of the parties constituted a variation of the written master discounting agreement.

Ratio Decidendi

The court held that the master discounting agreement governed the transaction and required written variation for any departure from its terms. There was no evidence of a written variation or conduct amounting to a departure from the agreement. The cession of the trader's rights and ownership of the vehicle to the appellant was effected only upon payment on 26 May 1981, as stipulated in the agreement. By that date, Van Coller was no longer in possession of the vehicle, and thus the requirements for transfer of ownership by attornment were not met. The appellant's claim that it acquired ownership prior to payment failed, and the trial court's order of absolution from the instance was correct.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.