University of Cape Town

Department of Private Law

University Examinations
October/November 2009
COMPARATIVE LEGAL HISTORY
RDL 1004H
TIME ALLOWED : TWO (2) HOURS plus 15 minutes for reading and
planning. The 15 minutes reading time may be used only for reading the question
paper and making planning notes on the left-hand page or in the margin.
INSTRUCTIONS: Answer THREE questions, including AT LEAST ONE from
Section A and AT LEAST ONE from Section B. All questions are weighted
equally.

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Section A
1. Are formal modes of conveyance preferable to informal ones? Illustrate your
answer with examples drawn from civilian legal history.
2. There must be some valid cause, such as donation, sale or other contract, to make
the delivery an effectual transfer of the property; and, in the present case, there
being no such contract, the property never passed to Holmes, who could not
therefore give a good title to the defendant. [De Villiers CJ in Beyers v McKenzie
1880 Foord 125 at p 127]
Was Beyers v McKenzie correctly decided?
3. A asks B, Will you give me your gold bracelet? B replies, Of course!
Is this a valid contract in modern South African law? Explain how South African
law arrived at this position.
4. If I thought that I was buying the Cornelian farm and you that you were selling
the Sempronian, the sale is void because we were not agreed upon the thing sold.
[Ulpian, D.18.1.9 pr]
To what extent is this statement still true in modern South African law? To the
extent that it is not, why is South African law different from Roman law?

Section B
5. C is the editor of a newspaper. He publishes a story about a politician, D, alleging
that D takes bribes. C sincerely believes the story to be true. However, he is
unwilling to disclose his sources, and so cannot prove that this is the case.
Explain how modern South African law would approach such a case and describe
the historical forces that have shaped this approach.
6. To what extent does modern South African law recognise a tort of nuisance?
7. Someone who has paid a sum of money, or transferred property, to another,
erroneously believing that it was due to that person, when in fact it was not due, is
entitled to recover the sum of money or the property. The condictio indebiti is
available, provided that the mistake (whether of fact or of law) was excusable. [D
Visser Unjustified Enrichment in Du Bois et al (eds) Willes Principles of South
African Law (9th ed Juta 2007) 1041 at p 1058]
Write an historical commentary on this extract from Willes Principles.
8. To what extent has the development of South African private law been a matter of
chance?

Ends/