n Tydskrif vir die Suid-Afrikaanse Reg - Interpretational difficulties arising from the cross-reference to the Credit Agreements Act 75 of 1980 in section 84 of the Insolvency Act 24 of 1936 : aantekeninge

Volume 2004, Issue 1
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



A seller who reserves the ownership in property he sells to a purchaser obtains a hypothec over the property upon the sequestration of the estate of the purchaser if the transaction falls within the provisions of section 84(1) of the Insolvency Act 24 of 1936. (As to whether s 84 always requires the reservation of ownership to be in favour of the seller, see par 3.4 below.) Since an owner cannot have a hypothec over his own goods, this means that ownership passes upon sequestration of an estate to the insolvent estate of the purchaser (or, put more correctly in a technical sense, the goods vest in the trustee of the insolvent estate). The seller can thus no longer institute the against anyone in possession of the property(including the trustee) to recover the property.

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