Professional Documents
Culture Documents
Offer
Acceptance
Minors
Insolvency
Mental incapacity
Waheeda Amien, 2010 3
Minors
age
living arrangements
Limping contract
Ltd CC
Ltd CC
at election of trustee
No CC
Contract = void
purporting to accept it
May be ceded
Damages; or
Interdict
Click-wrap agreements
Browse-wrap agreements
Click on:
□ “I agree”
Financial services
Auctions
Foodstuffs + beverages for everyday use
Customised goods
Goods / services where the price depends on market
fluctuations
Newspapers, books + periodicals
Audio, video / software products that have been unsealed
Gambling
Accommodation, transport, catering + leisure services for a
specified date / time period
Common mistake
Unilateral mistake
Mutual mistake
Party’s motives
Reasonable reliance
Caveat subscriptor
Expressly
Conduct
information
Causal
Incidental
Fraudulent
Negligent
Innocent
Waheeda Amien, 2010 46
Distinguish misrepresentation from:
Warranty
Statement of opinion
Puff
Undue influence
Persuasion is subtle
illegal;
legally impossible
= invalid + unenforceable
Act of parliament
Absolute prohibition
Relative prohibition
Parliament
Unenforceable
Nullity
Self-standing
Ante-nuptial contracts:
Writing
Signed by both parties
Notary public
Registration in deeds office within three months of
marriage
Terms
Express
Implied
= Both give rise to rights + obligations
Clauses
Provisions that do not give rise to rights +
obligations
Examples:
Parties’ intention
‘Curious bystander’ test
Usage must:
Shalin Naidu of 25 Ernest Road, Rylands Estate (hereinafter called ‘the seller’)
and
Raeesa Suliman of 12 High Level Road, Sea Point (hereinafter called ‘the purchaser’)
2. Price
The purchase price for the Goods shall be the sum of R50 000.00 (Fifty thousand rand).
Signed by the seller at Rylands Estate this 1st day of March 2008.
Shalin Naidu
-------------------------------
Signed by the purchaser at Rylands Estate this 1st day of March 2008.
Raeesa Suliman
-------------------------------
Conditions
Time terms
Warranties
Exclusionary / exemption / disclaimer clauses
Cancellation clauses
Penalty clauses
No variation clauses
Not terms
Suspensive
Resolutive
Examples:
Example:
Types of breaches
1. Mora debitoris
2. Mora creditoris
3. Repudiation
4. Positive malperformance
5. Prevention of performance
Two elements:
Two elements:
Performance is due
Debtor tenders proper performance
Waheeda Amien, 2010 84
Repudiation
Examples:
Anticipatory breach
Waheeda Amien, 2010 85
Repudiation
Typical expressions:
“I will not”
Defective performance
Two types:
Scenario 1:
Scenario 2:
Declaration of rights
Specific performance
Cancellation
Damages
Mandatory interdict
Prohibitory interdict
Clear right
Injury / well founded fear that injury will be
committed
No other remedy exists
Election to cancel
Cancellation clause
Repudiation
Prevention of performance
Positive malperformance
Cession = rights
Delegation = obligations
Dr Cr 1
Dr Cessionary
Novation
Creditor’s consent required
E.g. lease agreement
Dr Cr 1
3rd party
Novation
Dr / Cr Dr / Cr
Consent required
1. Proper performance
2. Agreement
3. Cancellation
4. Death
5. Failure of creditor to perform
6. Insolvency
7. Merger
8. Novation
9. Prescription
10. Set-off
11. Supervening impossibility of performance
Waiver
Novation
Compromise
Delay of prescription
Interruption of prescription