Shaw v Arami [1913] ZAWLD 24 (22 July 1913)

Purchase and Sale - Vacua possessio - Duties of Seller and Buyer - Claim by third party - Security against eviction - Payment by instalments - Divisible contract

S sold to A certain premises and a business, including a bioscope, billiard and tea rooms, and appurtenances. Payment was to be by instalments on failure to pay which S was to have the right after notice to re-enter.

A had failed to make due payment, and in an application for re-instatement claimed to be entitled to refuse further payments pending grant of clear title to certain of the goods valued at .£39 (a fraction of the whole contract) or security against eviction.

It was alleged that one X had claimed these goods, the claim being a notice by X that the goods had been sold to S under a hire-purchase agreement, and were still the property of the seller. No letter of demand was produced, and there was no proof of claim to the goods.

Held, granting the application, that no dispute had arisen as to the ownership of the goods in question, but assuming it had and that security should have been found by S, that the contract was divisible, and that respondent's duty was to have paid the balance of the price as it became due less the value of the goods in dispute.