The plaintiffs sued the defendant for the purchase price of a buffalo which died during an operation to test it for diseases as part of the sale.
It was found that a sale agreement had been concluded in which the defendant expressly agreed to assume the risk of death or injury to the buffalo arising from the operation. As these allegations were admitted, the plaintiffs alleged they were entitled to the purchase price of R1.146 million. The defendant contended that a purchase price can only be claimed against delivery and the buffalo had not been delivered.
But if impossibility of performance is self-created, there is no excuse for non-delivery and the purchase price is payable.
There was an agreement that the defendant would purchase the buffalo. There was an agreement that the defendant would assume the risk of death arising from the operation. The operation resulted in the death of the buffalo. The risk therefore eventuated. Seeing the defendant assumed the risk, he was liable for the purchase price of the buffalo. The fact that the buffalo had never been delivered did not excuse the defendant of the obligation to pay the purchase price.
That may all seem fairly obvious but there were disputes of fact which were all resolved by the court in favour of the plaintiff.
[The case is Griesel v Haasbroek]
