Maryna holds the BA, LLB, LLM degrees and is a Director at the Cape Town offices of STBB. She is an admitted Attorney, Notary Public and Conveyancer with many years of experience in the field of property law and conveyancing. She is also the firm's Marketing Director and attends to external publications for the firm as well as conducts ongoing training for estate agent and bankers training and is a regular seminar presenter for attorneys and property practitioners.

Property Law Update | Issue 09 – 2021

SELLING THAT WHICH YOU DO NOT YET HAVE

Tomlinson and Another v Tomlinson N.O and Others (11764/2015) [2021] ZAKZDHC 8 (19 March 2021)

If A sells B’s property to C, the resultant legal position is that A is obliged to make B’s property available to C. He will therefore attempt to obtain it. If he succeeds, he can make it available to C and the contract is performed. If B will not let him have it, he (A) fails to perform and is in breach of contract. In such circumstances C has an action against A for damages for breach of contract. How does this principle play out where a surviving spouse, who was married to her deceased husband in community of property, sells her undivided half share in the property to a third party before her husband’s estate was finally wound-up? Did she own that half share and could she sell it?

The Judgment
Summary of the Judgment

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