Jacobs v Small and Another (2014/35076) [2015] ZAGPJHC 243 (21 October 2015)

Jacobs v Small and Another (2014/35076) [2015] ZAGPJHC 243 (21 October 2015)

The court held that the respondents' claim is based on actio quanti minoris, which is a stand-alone remedy for latent defects and does not require proof of breach of contract or the giving of written notice to the seller. Clause 9 of the sale agreement prescribes remedies only for the seller and does not impose any notice requirement on the purchaser for claims based on latent defects. The respondents pleaded all essential allegations to sustain a cause of action under the aedilitian remedy. Therefore, the exception is bad in law and must be dismissed.

Citation
[2015] ZAGPJHC 243
Parties
Applicant: Charlotte Jacobs; Respondent: Keith Small; Respondent: Charmaine Small
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 October 2015
Case Number
2014/35076
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
M A Makume
Legal Topics
Exception to Particulars of Claim, Latent Defects, Actio Quanti Minoris, Aedilitian Remedies
Civil Procedure Land and Property Exception to Particulars of Claim Latent Defects Actio Quanti Minoris Aedilitian Remedies

Case Brief

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Parties

Charlotte Jacobs

Applicant

Keith Small

Respondent

Charmaine Small

Respondent

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the respondents' particulars of claim disclose a cause of action based on actio quanti minoris.
  2. 2 Whether the respondents were required to give written notice to the excipient to remedy the alleged breach before instituting action.
  3. 3 Whether the exception to the particulars of claim should be upheld or dismissed.

Ratio Decidendi

The court held that the respondents' claim is based on actio quanti minoris, which is a stand-alone remedy for latent defects and does not require proof of breach of contract or the giving of written notice to the seller. Clause 9 of the sale agreement prescribes remedies only for the seller and does not impose any notice requirement on the purchaser for claims based on latent defects. The respondents pleaded all essential allegations to sustain a cause of action under the aedilitian remedy. Therefore, the exception is bad in law and must be dismissed.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs.