Courts The Constitutional Court o Hears matters regarding the interpretation of the Constitution o Superior Court Supreme Court of Appeal o The Supreme Court of Appeal is only a court of appeal for High Courts o Superior Court High Court o Divorce o Mental Capacity o Sequestration of estate o Liquidation of Company o Will o Superior Court Magistrates’ courts o Have very limited jurisdiction o Lower Court
Registrar: Responsible: Issue Process Enrolment of cases maintenance of records and issuing of orders
Mr Senekal wants to sue Mrs Senekal for divorce. Which court should he approach? the High Court
Stare Decisis: The Decision Stands Judge make decision and parties must adhere Ratio Decidendi: Reason for the decision Every decision is not imposing rule of law Obiter Dictum:
Incidental Remark – Additional Remarks Can be persuasive for other Courts
Ownership: Person who has the right of ownersip over property is not neccesarily the possessor. (abdul possessor loads car to bill the ownership) Possession direct or indirect control over property Acquisition of Ownership o Occupation Seizure of property that belongs to no one Catching Wild Bird Original method of acquiring ownership o Prescription Take ownership after 30 years if he were the owner o Movable Property Delivery of property (cars moved from one place to another) o Immovable Property Property only after delivery, registration at Deeds office Servitudes Definition: Limited Real right over the property Praedial: Have the right to drive or walk over the plot of another Personal Servitudes: Usufruct: Wife may live on property if he dies and children receive ownership Mortgage and Pledge Limited real rights over property o Law of Succession Will of deceased estate – consist of assets and liabilities o Law of Intellectual Property Inventions, art, books o Law of Obligations Contract Delict – Causes damage Unjustified Enrichment
Susan buys Heloise’s house and pays the full purchase price. Susan acquires ownership of the house on . 1 conclusion of the contract of sale. 2 payment of the full purchase price. 3 registration of the transfer at a deeds office. 4 occupation of the house
Chapter 3: Law of Contract: Introduction
Contract: Agreement concluded by two or more persons with the serious intention of creating legally enforceable obligations
Requirements for the formation of a valid contract Consensus between parties Legal capacity to act Juridical possibility of the agreement Physical possibility of performance Observation of any formalities prescribed for the contract
Valid contract only if all these requirements have been satisfied – there may still be an agreement if some of these conditions exists but will NOT constitute a contract
In which ONE of the following situations was a VALID contract concluded? 3 Peter purchases a new pair of running shoes for R600 on the official website of Nike. The shoes will be delivered at his flat in Pretoria. All five requirements for a valid contract have been satisfied. Online contracting is possible. The Electronic Communications and Transactions Act 25 of 2002 regulate electronic contracts.
Chapter 4: Consensus Consensus is basis for every contract A contract cannot be valid in the absence of consensus
Consensus can only be reached if: Be contractually Bound Common Intention Make the intention Known
Offer and Acceptance Declaration made by person (offerer) Acceptance by offerree
Requirements for offer: Offeror will be legally bound by the mere acceptance Offer must be complete Clear and certain Accepted verbally or written Addressed to specific person The offer and acceptance must be communicated
Mr and Mrs Party invite 250 guests to the wedding reception of their daughter. They agree with Good Food Caterers that the cost of the reception will be calculated at R per guest. For that reason Mr and Mrs Party state expressly on the wedding invitation that no children are invited to the reception. No less than 20 children attend the reception. Good Food Caterers charges Mr and Mrs Party extra for the 20 additional guests. Which ONE of the following statements is CORRECT? 1 Mr and Mrs Party may not claim the additional costs from the uninvited children, because, as minors, they are not liable for performance in terms of the contract, unless their parents or guardians ratify the contract. 2 Mr and Mrs Party may claim the additional costs from the parents or guardians of the children, because by bringing extra children to the reception contrary to the express statement in the offer (invitation) that children were not invited, they committed breach of contract. 3 Mr and Mrs Party may refuse to pay Good Food Caterers the additional amount for the uninvited children, since they made a mistake as to the number of guests who would attend the reception, and so did not agree to the additional expenses. 4 Mr and Mrs Party may not claim the additional costs from the parents or guardians of the (uninvited) children, since the invitation constitutes only a social arrangement and not a contract, and failure to abide by its conditions does not amount to breach of contract.
Social appointments, of which an invitation to a wedding reception is an example, have no legal consequences. Since the parties in this set of facts do not have the intention to create legally enforceable obligations, their agreement is not a contract
Which ONE of the following constitutes a valid offer? 1 David advertises his car for sale in the local newspaper. 2 Peter verbally offers to buy a farm belonging to Johnny for R500 000. 3 Sandy says she will pay a reward of R100 to anyone who finds her lost dog. 4 Dolly makes Johnny a written offer to buy his farm, but her letter is lost in the post.
One of the requirements for offer and acceptance is that the offer may be addressed to a particular person or persons, or in general to an unknown person or persons. This is an example of an offer addressed to unknown persons
The following are examples that are not offers: Invitation to make a offer Statements of intent Calling for Tenders Auctions
Absence of consensus Relate to fact, legal rule or principle Material fact, legal rule or principle Fact of law
Dispatch theory Contract comes into being at the place and time when the letter of acceptance is posted
Undue influence: Under duress
Drunk or under drugs: Cannot conclude contract Prodigal: unable to control spending unable to contract Insolvency: if sequestrated – not impacted can contract as long as it does not impact estate
Ben is a general dealer he needs to appoint a sales person and to replace his delivery van with a bigger vehicle. If en finds a buyer for the van and a suitable sales person he will conclude two contract: a contract of sale in respect of the old vehicle and a contract of employment with the suitable applicant
Which one of the following persons does NOT have full capacity to conclude both contracts with Ben 1. Emma, twenty years old, who has been married to Dan for the last two years. They are married out of community of property 2. Noel whose estate was sequestrated after he lost a fortune in a shady business deal. Noel has not been rehabilitated as yet 3. Ace who is married in community of property to Jane 4. Andrew, 19 years old, whose parents left him behind when they immigrated to America because he had his own job and flat
If sequestrated – not impacted can contract as long as it does not impact estate
Alice is a seventeen year old and lives with her parents. She concludes a written
contract in terms of which she buys a flat from Ben, a 35 year old man for R80 000.
She intends to use the money she received as a gift from her uncle to pay the
Which of the following statements is correct?
Chapter 6: The agreement must be possible
Must be possible two elements Legal possibility Physical Possibility
Contracts contrary to common law Contracts which cannot be legally executed (legally) Agreement that are contrary to good morals (running a brothel) Agreement that are contrary to public policy (harmful to public) o Administration of justice o Crimes and delicts o Safety of state o Restraining freedom to participate in legal transactions o Freedom to participate in trade (restraint of trade) Allowed to give restraint of trade – Valid and Enforceable o Gambling Contracts
Which ONE of the following contracts is NOT legally impossible in terms of the common law? 1 Anna lends money to Barry, in order for him to divorce his wife, so that he can marry her. 2 Betty is angry because someone parked in her parking bay. She pays the car guard R10 to damage the wipers of the car. 3 Sam and Birgit are engaged. They include a clause in their ante nuptial contract to the effect that Sam makes Birgit his heir. 4 Jeff and Joe decide to run a brothel and draw up an agreement on how they will divide the profits.
Contracts could be contrary to public policy because they restrict people’s freedom to participate in legal or commercial intercourse. However, as an exception, the law does allow engaged couples to include a clause in their ante nuptial contract to the effect that the one spouse makes the other his or her heir. This exception enables the first-dying spouse to provide for the maintenance of the surviving spouse
Correct Answer 1
Chapter 7: Formalities
Formalities: Relating to the outward, visible form in which the agreement must be cast to create a valid contract. General Rule: No formalities required
Compliance with formalities is a requirement for the validity of only those contracts where formalities are required by legislation or the contracting parties
Which ONE of the options provided below will complete the following sentence CORRECTLY? Compliance with formalities is a requirement for the validity of . 1 all contracts. 2 all written contracts. 3 only those contracts where legislation prescribes formalities. 4 only those contracts where formalities are required by legislation or the contracting parties.
Contracts where formalities are required: By Law o Alienation of Land o Contracts of surety-ship o Donation of performance due in future o Consumer contracts o Unless registered the ante nuptial contract no force against 3rd party (between spouses) Required by Parties Writing and signing of electronic transactions o Attach signature - legal (signature, name etc) o By Law only advanced electronic signature o An electronic signature can legally fulfil the same function
Peter entered into several contracts without complying with the prescribed statutory formalities. He has not performed in terms of any of these contracts. Which ONE of the following contracts into which Peter entered will be partially valid if statutory formalities are NOT complied with? 1 a contract for the alienation of land 2 a contract of suretyship 3 an antenuptial contract 4 none of the above, because they will all be completely void
An ante nuptial contract must be notarially attested to and then registered in a Deeds Office within the prescribed period. However, if an ante nuptial agreement has not been registered, the agreement is valid between the spouses, but not against third parties.
Chapter 8: Terms of the Contract Term Provision which imposes on a contracting party one or more contractual obligations to act in a specific manner or to refrain from performing specific act
Different Types of incorporating terms into a contract Express o Articulated declarations of interest Tactical terms o Not expressed in words but based on parties true intention Implied Terms o Implied warranty on goods
Essentialia Terms which are essential for the classification of a contract Identify the particulars of the contract (identification
Naturalisa Rights and duties of contracting parties Effects and consequences of contracts
Incidentalia Special requirements Allowance for additional time for paying money Added terms which are included in a contract in order to provide for special requirements of the parties
Condition Suspensive Condition o Suspend the operation of the contractual obligations in terms of the contract until the condition have been fulfilled (until you get the loan, if not then the contract is void) Resolutive Condition o Future condition where after the contract is concluded
Stanley makes a written offer to buy Fanie’s house on condition that Stanley obtains a loan from Regular Bank for the amount of R500 000 within three weeks. Fanie accepts the offer by Stanley. Which ONE of the following statements is CORRECT? 1 No binding contractual relationship has come into being between the parties. 2 If Stanley does not obtain the loan within three weeks, the contractual obligations are terminated. 3 The contractual obligations come into operation on acceptance of the offer by Fanie. 4 Fanie can withdraw from the contract if, after a week, it appears that Stanley’s chances of obtaining the loan are remote.
If the uncertain future event (ie the obtaining of the loan) does in fact take place, the condition will be fulfilled. If this specified uncertain future event does not take place, as is
Penalty Clause Breach of Contract and claim damages
Correct Answer: 1
Forfeiture Clause Special conditions to cancel or rescind contract and entitle to restitution
Rouwgeld Clause Amount to be paid to dissolve contract Forfeit deposit
Entrenchment Clause May only be altered by written amendment
Correct Answer: 4
Chapter 9: Interpretation of the Contract
Guidelines for interpreting a contract Ordinary grammatical meaning Words that carry a technical meaning will be interpreted in accordance with their specific use. Context of words are used Ambiguity Interprets against the author Presumptions - Where the parties express themselves on a particular matter but omit some detail, common-law rules will regulate that aspect.
Correct Answer:3 Ambiguity Interprets against the author
Which ONE of the following is NOT a guideline for the interpretation of contracts? 1 Words that carry a technical meaning will be interpreted in accordance with their specific use. 2 Normally all words will have their ordinary grammatical meaning. 3 If ambiguity exists, the contract will usually be regarded as invalid. 4 Where the parties express themselves on a particular matter but omit some detail, common-law rules will regulate that aspect.
Parole evidence or integration rule Based on oral – written down Written document is the only written document Not be allowed to submit changes or changes based on agreement before The parole evidence prevents a person from relying on the oral agreement and he is obliged to repay the loan
Correct Answer: 4
Chapter 10: Breach of Contract
Five Different Forms of Breach of Contract Default by Debtor o Mora Debtoris o Only Late with Performance – and must still be able to perform on a later stage o Does not perform to agreed time and delay is due to debtors fault o Performance must be delayed o Must be due to debtors fault o Specify specific date or time Default by Creditor o Creditor causes the debtors performance to be delayed o Discharge of debtors obligation Positive Malperformance o Rendering defective performance – inferior quality o Debtor commits an act which is contrary to the terms of the contract Repudiation o Party indicating that he will not honour the obligations of the contract Prevention of Performance o Caterer does not arrive for wedding due to writing down wrong date – wedding is over and cannot cater for it later
Ted and Marshall enter into a contract in terms of which Marshall has to deliver a dozen bottles of export wine to Ted. Ted has already paid the purchase price. Marshall now indicates that he does not intend to perform in terms of the contract. Which ONE of the following types of breach of contract has Marshall committed? 1 repudiation 2 mora debitoris 3 positive malperformance 4 prevention of performance
