PVL3702ASSIGNMENT01.

1. Identifying the problem The problem at hand in this particular case is whether an enforceable contract was concluded between her (X) and company Y and whether misrepresentation and mistake could offer a remedy based on the fact of the case. 2. Discussing the relevant law applicable to the problem First we need to establish what in actual fact a valid contract entails. A contract is essentially an agreement between two or more parties, but not all agreements are contracts the extra ingredient that distinguishes contracts from these non-binding agreements is thus a serious intention to create legally enforceable obligations (animus contrahendi)1 . On the other hand, the fact that parties seriously intend their agreement to have binding legal effect does not necessarily mean that it is a contract, thus some agreements are not intended to create obligations, but to cancel them, or transfer rights thereby honoring the agreement. With that said a contract may be defined as an agreement entered into by two or more persons with the intention of creating a legal obligation. Although there are broad definitions to a contract, there are also particular requirements that need to be met in order for the contract to be legally binding. These are the following: (a) there need to be a consensus; (b) parties involved need to have the necessary capacity to contract; (c) formalities must be observed such as the writing and signing of the particular contract; (d) the agreement must be in right standing with the law; (e) the obligations undertaken must be capable of performance when the agreement is entered into; and (f) there need to be certainty of the contract, it thus needs to be definite. In our problem we can find all of the above requirements met, in so far, as it concerns the law, I do not think that there are any hindering factors, or technical factors that will pose a hindrance in seeking a remedy. It is also important to note the contract was done bonae fidei and that there was a consensual agreement between X and Y, who were the parties involved. . Some of the earlier cases followed the Roman-Dutch writers in suggesting that there could be no contract in the absence of consensus; but when the matter arose for crisp decision in Pieters & Co v Salomon2 , the Appellate Division chose to adopt the English approach. A offered to pay B’s debt to C, believing the amount in question to be £345 when it was actually £490. C accepted 1 Hutchison & Pretorius (eds) The Law of Contract in South Africa 3 rd (2017) 2 Pieters & Co v Salomon 1911 AD 121 This study source was downloaded by from CourseH on :17:01 GMT -06:00 the offer in good faith, not realising that A was mistaken as to the amount. The court upheld C’s claim for the full amount. 3. Applying the law to the facts of the problem In Kok v Osborne3 the question was raised if performance could have been possible. As clearly identified there was intentional misrepresentation by means of denial on the part of Hobson-Jones so as to avoid performance, the latter was then discovered and thus Mrs. Kock claimed the R47 000 and repudiated the cancellation of the sale. In our scenario I do not think that the above mentioned case would fit intentional misrepresentation but however was negligently mistaken by Y, this is by no means to say that the contract was not valid, but rather to establish intent. There was no malicious intent or male fide prejudice towards X, as oppose to the Kok v Osborne4 case. In the case of X, I believe it was an error in coporae which essentially is a material mistake concerning the subject matter of the contract, or rather, the object of the performance, an example is where a property is purchased and the parties have completely different properties in mind. For instance, in Maresky v Morkel5 the respondent was under the impression that he was purchasing property at site A, because of an advertisement in a newspaper to that effect. The appellant’s agent failed to point out to him that the property was in fact situated at site B. The court found that the respondent’s mistake was in corpore, which vitiated his consent to the contract6 . In Allen v Sixteen Stirling Investments (Pty) Ltd7 , the plaintiff believed he was purchasing the property pointed out to him by the defendant’s agent. However, the deed of sale that he signed referred to another property, which the plaintiff did not intend to buy. In other words, the parties were not in agreement as to what was being bought and sold. With reference to the Allen v Sixteen Sterling case one can correlate immediately the basis of the scenario we are dealing with in the case of X and Y. However, in our case, X was mistakenly chosen and as a consequence all the paper was sent to her. Y eventually recognised the mistake and tried to correct it by apologising. 4. Appropriate advice. There was a dissensus, Y’s error is iustus because it was induced by X’s misrepresentation, thus the contract will be void ab initio for the mistake