SELLING THAT WHICH YOU DO NOT YET HAVE
Tomlinson and Another v Tomlinson N.O and Others (11764/2015)  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?