Contract law in South Africa / Louis F. van Huyssteen, Catherine J. Maxwell.
2015
KTL858 .V36 2015b (Map It)
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Details
Author
Title
Contract law in South Africa / Louis F. van Huyssteen, Catherine J. Maxwell.
Uniform Title
International encyclopaedia of laws. Contracts.
Published
Alphen aan den Rijn, the Netherlands : Kluwer Law International, [2015]
Call Number
KTL858 .V36 2015b
Former Call Number
So.Af 500 V317 2015
Edition
Fourth edition.
ISBN
9789041160652 (pbk.)
9041160655 (pbk.)
9041160655 (pbk.)
Description
346 pages ; 24 cm
System Control No.
(OCoLC)913851428
Note
"This book was originally published as a monograph in the International encyclopaedia of laws/Contracts."
Bibliography, etc. Note
Includes bibliographical references (pages 303-314) and index.
Record Appears in
Added Author
Table of Contents
Authors
3
List of Abbreviations
17
General Introduction
19
1.
General Background Of The Country
19
I.
Geography
19
II.
Population
19
III.
Economy, Labour Relations, and Infrastructure
20
IV.
Political System
22
V.
Cultural, Social, and Economic Values
23
2.
South African Law Belongs To The Civil Law Legal Family
24
3.
Primacy Of Legislation
27
4.
Position Of The Judiciary
27
I.
Role and Function of the Judiciary
27
II.
System of Precedent
31
III.
Hierarchy of Courts and Law Reporting
31
5.
Distinction Between Public Law And Private Law
31
6.
Distinction Between Civil Law And Commercial Law
32
ch. 1
Introduction to the Law of Contract
33
1.
Definition Of A Contract
35
I.
Contract as a Juristic Act
35
II.
Agreement or Reliance as Facts Creating a Contract
35
III.
Intention to Create a Contract, Consideration, and Legality
35
IV.
Civil and Natural Obligations
35
V.
Contract Distinguished from Other Legally Relevant Agreements
36
VI.
Contract Is a Multilateral Legal Act
36
VII.
Contract Creates Personal Rights and Duties
36
VIII.
Bases of a Contract in Brief: Definitions
36
2.
Historical Background Of The Law Of Contract
37
I.
Roman-Dutch Law
37
II.
Concepts of Roman and Roman-Dutch Law in the Modern Law of Contract
38
III.
Jus Commune
39
IV.
English Law
39
V.
Indigenous Law
40
3.
Classification Of Contracts
40
I.
'Consensual', 'Real', and 'Solemn' Contracts
40
II.
Unilateral, Multilateral, and Reciprocal Contracts
41
III.
Express and Tacit Contracts
42
IV.
Nominate and Innominate Contracts
42
V.
Standard Form Contracts
42
VI.
Onerous and Gratuitous Contracts
44
VII.
Aleatory Agreements
44
VIII.
Accessory Obligations
44
IX.
Collateral Contracts
44
X.
Pacta de Contrahendo
44
XI.
Contracts in Favour of Third Parties
45
4.
Contracts And Delicts (TORTS)
45
I.
Law of Delict and Tort
45
II.
Blurring of Distinction between a Contract and a Delict
45
III.
Culpa in Contrahendo
46
IV.
Rescission of a Contract and Delict
47
V.
Delictual Damages and Contract
47
VI.
Delictual Damages for Negligent Misstatements in Contrahendo
47
VII.
Breach of Contract and Delict
48
VIII.
Concurrence of Actions
49
5.
Contracts And Quasi-Contracts
51
I.
'Quasi-Contract' Is Not a Term of Art in South African Law
51
II.
No General Enrichment Action: Development of Liability
53
III.
Specific Enrichment Actions
54
A.
Condictio Causa Data Causa Non Secuta
54
B.
Condictio Ob Turpem Vel Iniustam Causam
55
C.
Condictio Indebiti
55
D.
Condictio Sine Causa Specialis
55
E.
Action for Improvements
55
F.
Negotiorum Gestio
56
G.
Claim against a Minor
56
H.
Alienation of Land: Statutory Enrichment Action
56
I.
Claim for Reduced Performance
56
6.
Contract And Law Of Property
57
I.
Real Rights and 'Equitable Ownership'
57
II.
Creation of Real Rights and Kinds of Real Rights
59
III.
Transfer of Real Rights and Registration
60
IV.
Contract Does Not Transfer Rights
60
7.
Contracts And Trusts
60
I.
Relationship between a Contract and a Trust; Nature of a Trust
60
II.
Definition of a Trust
61
III.
Main Features of a Trust
62
A.
Creation of a Trust
62
B.
Transfer of Trust Property
62
C.
Trust Is Not a Legal Person
62
D.
Separation of the Trust Estate
63
E.
Office of Trustee
63
8.
Good Faith And Fair Dealing
64
I.
No General Doctrine of Good Faith Is in South African Common Law; Ubuntu
64
II.
'Subjective' Good Faith: Doctrine of Notice
68
III.
Rescission and Good Faith
68
IV.
No Duty to Negotiate in Good Faith
68
V.
Good Faith with Respect to Content, Execution, and Enforcement of a Contract
70
A.
Interpretation
70
B.
Supplementing Function
71
C.
Derogating Function: Illegality
71
D.
Changed Circumstances
71
E.
Rechtsverwerking (Limitation of Enforcement of Rights) and Estoppel by Representation
72
F.
Future Development
72
VI.
Direct Legislation
73
9.
Effect Of The Constitution On Law Of Contract
73
I.
Effect of the Bill of Rights on Private Law
73
II.
Effect on Law of Contract: Restraint of Trade
75
III.
Freedom of Contract as a Leading Principle and Future Developments
75
10.
Style Of Drafting
76
11.
Sources Of Law Of Contract
77
I.
Classification of Areas of South African Law
77
II.
Sources of Law of Contract
78
II.
Finding the Law
78
A.
Case Law
78
1.
Method of Citation of Cases
80
B.
Legislation
80
C.
Books, Periodicals, and Encyclopaedias
81
1.
Method of Citation of Literature
81
Part I General Principles of the Law of Contract
83
ch. 1
Formation
83
1.
Agreement, Quid Pro Quo (Reciprocity), And Reliance
83
I.
Offer and Acceptance
83
A.
Offer
84
B.
Revocation of Offer, Option Contracts, and Lapse of Offer
84
C.
Pre-contractual Fault
86
D.
Offer and Promise to Contract
86
E.
Offer or Invitation to Treat
87
F.
Acceptance of Offer
87
G.
Contract by Correspondence and Other Methods When Parties Are Not in Each Other's Presence
89
II.
Intention to Create Legal Relations
90
A.
Consideration Is Not a Requirement
91
B.
Gratuitous Promises
91
C.
Natural Obligations
91
III.
Reasonable Reliance
92
2.
Formal And Evidential Requirements
93
I.
Formal Requirements
93
A.
Contracts by Deed
93
B.
'Solemn' Contracts
93
C.
Formalities Imposed by Parties and by Statute
93
1.
Formalities Imposed by Parties
94
2.
Formalities Imposed by Statute
94
D.
Function of a Notary
96
II.
Evidential Requirements
97
A.
Ordinary Principles of Evidence Apply
97
B.
Documentary Evidence
97
C.
Probative Effect of Notarial Instruments
101
D.
Probative Effect of Signed and Unsigned Documents
101
E.
Probative Effect of the Date of a Signed Document
102
F.
Registration
102
G.
Admissibility and Probative Effect of Copies, Books of Account, and Other Records
102
H.
Evidence by Testimony, Presumptions of Law and Fact, and Inferences
103
I.
Proving a Tacit Contract or Tacit Term
103
J.
Admissions
104
K.
Expert Evidence
104
L.
Direct and Circumstantial Evidence
105
M.
Other Admissible Evidence
105
N.
Discovery of Documents and Pre-trial Conference
105
III.
Burden of Proof
105
3.
Liability And Negotiations
106
I.
No General Theory of Pre-contractual Liability
107
II.
When Consensus and Other Elements for Formation of a Contract Are Not Present and No Contract Results
107
III.
Breakdown of Negotiations
108
IV.
Liability for Pre-contractual Conduct When a Contract Has Come into Being
109
V.
Duty to Inform
110
VI.
Rescission and Restitution
111
VII.
Damages
112
VIII.
Reduction of Performance or 'Restitutionary Damages'
113
ch. 2
Requirements for Substantive Validity
115
1.
Capacity Of Parties
115
I.
Minors
115
II.
Aliens
116
III.
Married Women
116
IV.
Insanity
117
V.
Juristic Persons
117
2.
Mistakes And Defects Of Consent
118
I.
Mistakes
118
A.
Material Mistakes and Errors in Substantia, in Persona, and in Corpore
119
B.
Mistakes That Will plot Affect the Creation of a Contract
120
C.
Protection of Reasonable Reliance on Consensus in Cases of Material Mistakes That Lead to Dissensus
121
II.
Improperly Obtained Consensus and Grounds for Rescission of a Contract (Defects of Will or Consent)
123
A.
Laesio Enormis
125
B.
Fraud and Negligent Misrepresentation
125
C.
Innocent Misrepresentation
127
D.
Duress (Violence)
128
E.
Undue Influence
128
F.
General Ground for Rescission
129
3.
Other Requirements For The Existence Of A Contract
130
I.
Causa (Just Cause)
130
II.
Certainty
131
III.
Initial Possibility of Performance
135
IV.
Legality
135
4.
Consequences Of Absence Of Constitutive Elements Of A Contract And Consequences Of Consent Improperly Obtained
139
I.
Absence of Obligations, or So-Called Nullity
139
II.
Nullity or Unenforceability in Cases of Illegality
140
III.
Claim for Return When No Legal Obligations Arise
141
A.
Nature of the Claim
141
B.
Consequences with Respect to Third Parties and between Parties Themselves
142
IV.
Severability
142
V.
Rescission and Restitution in the Case of an Improperly Obtained Consensus
142
VI.
Damages and Reduction of Purchase Price
144
ch. 3
Contents of a Contract
145
1.
Dipferent Clauses
145
I.
Ascertainment and Classification of Terms
145
II.
Exemption and Limitation Clauses
147
III.
Penalty Clauses
148
IV.
Arbitration Clauses
149
2.
Interpretation
149
3.
Conditional Contracts
152
I.
Conditions and Other Terms
152
II.
Classification of Conditions
153
III.
Impossible and Illegal Conditions
153
IV.
Effect of a Condition
155
A.
Pendente Conditione
155
1.
Suspensive Condition
155
2.
Resolutive Condition
155
3.
Fictional Fulfilment of a Condition
156
B.
Eveniente Conditione
156
C.
Deficiente Conditione
156
ch. 4
Privity of Contract
157
1.
Privity Of Contract
157
I.
Third Parties and a Contract
157
II.
Contract for the Benefit of a Third Party
158
A.
Requirements for Validity
159
B.
Position Prior to Acceptance by a Third Party
160
C.
Position after Acceptance by a Third Party
160
2.
Transfer Of Contractual Rights And Duties
161
I.
Transfer of Rights: Cession
161
A.
Requirements for Effective Cession and Formalities
162
B.
Consequences of Cession
162
C.
Consequences of Out-and-Out Cession for Third Parties Other than the Debtor
164
II.
Transfer of Duties: Delegation and Assignment
164
3.
Subcontracting
165
I.
Liability of the Main Contractor for the Conduct of a Subcontractor
165
II.
Relationship between a Co-contractant and Subcontractor
166
4.
Effect Of Insolvency On A Contract
167
ch. 5
End of a Contract
169
1.
Performance And Breach
169
I.
Performance
169
A.
Who May Perform?
169
B.
To Whom Must Performance Be Made?
170
C.
What Must Be Performed?
170
D.
Special Rules as to Payment of Money Debts
171
E.
Payment with Subrogation
172
II.
Breach
173
A.
Nature of a Breach
173
B.
Forms of Breach and Requirements
174
1.
Delay by a Debtor: Mora Debitoris
174
2.
Mora Creditoris
175
3.
Positive Malperformance by a Debtor
175
4.
Prevention of Performance by a Debtor
176
5.
Repudiation by a Debtor
176
C.
Fault as a General Requirement
177
D.
Consequences of Breach of Contract in General
178
2.
Impossibility Of Performance, Frustration, And Hardship
178
I.
Irresistible Force
178
II.
Supervening Impossibility of Performance
178
III.
Objective or Practical Impossibility
181
IV.
Consequences of Supervening Impossibility
181
V.
Different Allocation of Risk for Supervening Impossibility by Contract and Operation of Law
182
A.
Contractual Allocation of Risk
182
B.
Allocation of Risk by Operation of Law
183
VI.
Changed Circumstances and Good Faith
183
3.
Discharge And Termination By Agreement
184
I.
Release
184
II.
Novation
185
ch. 6
Remedies
187
1.
General
187
2.
Defence Of Non-Performance By The Other Party
188
I.
Exceptio Non Adimpleti Contractus (Right to Withhold)
188
II.
Lien and Compensation
192
A.
Lien
192
B.
Compensation (Set-Off)
192
3.
Specific Performance And Enforcement Of Judgment Debts
193
I.
Claim for Specific Performance
193
II.
Enforcement of Judgment Debts
195
4.
Termination
196
I.
Right to Cancel
196
II.
Exercising and Lapse of a Right to Cancel
198
III.
Consequences of Cancellation
200
5.
Restitution
202
6.
Damages
202
I.
General Requirements for a Claim for Damages
202
II.
Damage
205
A.
Non-pecuniary Loss
206
B.
Damnum Emergens and Lucrum Cessans
207
C.
'Certain' Damage
208
D.
Specific Measures of Damages
208
III.
Causal Relation
209
IV.
Mitigation of Damages
211
V.
Moment for Calculation of Damages
211
VI.
Methods of Assessing Damages in Certain Kinds of Cases
212
VII.
Exemption Clauses and Penalty Clauses
213
7.
Prescription And Expiry Periods
213
I.
Interruption of Prescription
214
II.
Suspension or Delay of Prescription
215
III.
Invalidity or Rescission of a Contract
215
IV.
Delict
216
V.
Conflict of Laws
216
VI.
Invocation of Prescription
216
VII.
Computation of Periods of Prescription
216
VIII.
Expiry Periods
217
IX.
Estoppel by Representation: Loss of Ability to Claim as a Result of Representation
217
Part II Specific Contracts
223
ch. 1
Agency
223
1.
Duties Of An Agent
225
2.
Duties Of A Principal
225
3.
Consequences Of Direct Representation
226
4.
Apparent Or Ostensible Authority
226
5.
Relationship Between An Agent And A Third Person
227
6.
Relationship Between The Agent And The Principal
228
7.
Termination Of An Agent's Authority And The Contract Between The Agent And The Principal
228
8.
Indirect Representation And The Doctrine Of The Undisclosed Principal
229
9.
Broking
230
ch. 2
Bailment
231
1.
Contract Of Bailment (Deposit) And Rights And Duties Of Parties
231
2.
Negotiorum Gest10
232
3.
Special Liability Of Hoteliers
233
ch. 3
Gaming and Wagering
234
1.
Wagers And Bets
235
2.
Insurance Contracts
236
ch. 4
Sale of Goods
237
1.
Delivery
240
2.
Transfer Of Ownership And Risk
242
I.
Ownership
242
II.
Option to Re-purchase
243
III.
Passing of Risk
244
3.
Seller's Liability For Eviction And Latent Defects
246
I.
Sale by a Non-owner and Warranty against Eviction
246
II.
Seller's Liability for Defects and Warranty against Latent Defects
249
4.
Remedies
252
5.
Product Liability
254
6.
Sale On Instalments
255
ch. 5
Letting and Hiring of Work and Building Contracts
260
1.
Definition
260
2.
Letting And Hiring Of Work Distinguished
260
3.
Building Contracts
261
ch. 6
Lease
264
1.
Evidence
265
2.
Formation Of A Contract Of Lease
265
3.
Duties Of The Lessor
266
4.
Duties Of The Lessee
267
5.
Assignment, Cession, And Subletting
268
6.
Duration Of A Lease
268
7.
Renewal Of A Lease
269
8.
Nature Of The Lessee's Right
269
ch. 7
Compromise
271
ch. 8
Suretyship
273
1.
Nature Of Suretyship
273
2.
Requirements For Validity
273
3.
Termination
274
4.
Effect Of Suretyship Between The Creditor And The Surety
277
5.
Effect Of Suretyship On The Relationship Between The Debtor And The Surety
277
6.
Effect Of Suretyship Between Co-Sureties
277
ch. 9
Pledge
279
1.
Meanings Of Pledge
279
2.
Definition And Requirements Of A Pledge Contract
279
3.
Duties Of The Pledgor
279
4.
Who May Pledge?
280
5.
Terms Of A Pledge Contract
280
6.
Duties Of The Pledgee
280
7.
Rights Of The Pledgee
280
8.
Termination Of A Pledge
281
ch. 10
Loan
282
1.
Loan For Use
282
2.
Loan For Consumption
283
3.
Loan On Interest
283
ch. 11
Contracts with the State
285
ch. 12
Partnership
288
1.
Definition
288
2.
Requirements
288
3.
Effect
289
4.
Termination
289
ch. 13
Quasi-Contracts
291
1.
Introduction
291
2.
Condictio CA USA Data CA USA Non Secuta
291
3.
Condictio Ob Turpem Vel Iniustam Causam
292
4.
Condictio Indebiti
293
5.
Condictio Sine CA USA Specials
295
6.
Action For Improvements
296
7.
Claim Against A Minor
297
8.
Alienation Of Land: Statutory Enrichment Action
298
9.
Claim For Reduced Performance
298
10.
Negotiorum Gestio
299
I.
Negotiorum Gestio in General
299
II.
Requirements
299
III.
Duties of the Gestor
300
IV.
Rights of the Gestor
300
V.
Names and Nature of Actions
300
Selected Bibliography
303
Table of Cases
315
Index
335