,1
,PART ONE NATURE AND BASIS OF CONTRACT
Chapter 1 the nature and basis of contract
PART TWO FORMATION OF CONTRACT
Chapter 2 offer and acceptance
Chapter 3 mistake/absence of consensus
Chapter 4 improperly obtained consensus
PART THREE REQUIREMENTS OF A VALID CONTRACT
Chapter 5 contractual capacity
Chapter 6 formalities
Chapter 7 legality
Chapter 8 possibility and certainty
PART FOUR CONTENTS AND OPERATION OF A CONTRACT
Chapter 9 parties to contracts
Chapter 10 obligations and terms
Chapter 11 interpretation of contracts
PART FIVE BREACH OF CONTRACT
Chapter 12 forms of breach
Chapter 13 remedies for breach
PART SIX TRANSFER AND TERMINATION OF RIGHTS AND
OBLIGATIONS
Chapter 14 cession
Chapter 15 termination of obligations
PART SEVEN DRAFTING
Chapter 16 drafting of contracts
PART EIGHT THE CONSUMER PROTECTION ACT
Chapter 17 the consumer protection act 68 of 2008
4
,PART ONE NATURE AND BASIS OF CONTRACT
CHAPTER 1 THE NATURE AND BASIS OF CONTRACT – DALE HUTCHISON
1.1 The notion of contract
1.1.1 Contract as an agreement intended to create enforceable obligations
1.1.2 Legally binding agreements that are not contracts
1.1.3 Legally binding agreements that are more than just contracts
1.1.4 Definition of contract
1.2 Requirements for a valid contract
1.3 The nature of contract
1.4 Contract and the law of obligations
1.4.1 The concept of obligation
1.4.2 Contract and delict
1.4.3 Contract and enrichment
1.5 Contract and the law of property
1.6 The development of the modern notion of contract
1.6.1 Roman law
1.6.2 Roman-Dutch law
1.6.3 Causa and consideration: a celebrated dispute
1.7 The impact of the Constitution
1.8 The basis of contract
1.8.1 Introduction
1.8.2 Actual subjective agreement (consensus)
1.8.3 Apparent or objective agreement
1.8.4 Theories of contract
1.8.5 Approach to contract: subjective or objective?
1.8.6 Dual basis of contract in modern law
1.8.7 Proving the existence of a contract
1.9 Cornerstones of contract
1.9.1 The goals of contract law
1.9.2 Competing values in the law of contract
1.9.3 Freedom and sanctity of contract
1.9.4 Good faith, equity and public policy in contract
1.10 The Consumer Protection Act 68 of 2008 (CPA)
PART TWO FORMATION OF CONTRACT
CHAPTER 2 OFFER AND ACCEPTANCE
2.1 Introduction
2.2 The offer
2.2.1 Legal effect of an offer
2.2.2 Requirements for a valid offer
5
, 2.2.2.1 The offer must be firm
2.2.2.2 The offer must be complete
2.2.2.3 The offer must be clear and certain
2.2.2.4 The Consumer Protection Act 68 of 2008 (CPA)
2.2.3 Offers to the public
2.2.3.1 Advertisements
2.2.3.2 Promises of reward
2.2.3.3 Calls for tenders
2.2.3.4 Auctions
2.2.4 Termination of an offer
2.2.4.1 Rejection of the offer
2.2.4.2 Death of either party
2.2.4.3 Effluxion of the prescribed time, or of a reasonable time
2.2.4.4 Revocation of the offer
2.2.4.5 Loss of legal capacity to act
2.2.4.6 Acceptance of offer
2.3 The acceptance
2.3.1 Requirements for a valid acceptance
2.3.1.1 The acceptance must be unqualified
2.3.1.2 The acceptance must be by the person to whom the offer
was made
2.3.1.3 The acceptance must be a conscious response to the offer
2.3.1.4 The acceptance must be in the form prescribed by the
offeror (if any)
2.3.2 When and where acceptance takes effect
2.3.2.1 The information theory as the general rule in our law
2.3.2.2 Exceptions to the general rule
2.3.2.3 Where the offeror stipulates a different method of
acceptance
2.3.2.4 Postal contracts: the expedition theory applies
2.3.2.5 The scope of the exception
2.3.2.6 Criticism of the expedition theory
2.3.2.7 Revocation or neutralisation of the posted acceptance
2.3.2.8 Electronic contracts: the reception theory applies
2.4 Breaking off negotiations
2.5 Pacta de contrahendo
2.5.1 Options
2.5.1.1 Juristic nature of an option
2.5.1.2 Earlier views on the nature of an option
2.5.1.3 Unilateral declaration that the offer is irrevocable
2.5.1.4 Legal effect of an option
2.5.1.5 Duration of the option
2.5.1.6 Transferability of an option
2.5.1.7 Formalities: options to buy or sell land
2.5.1.8 Remedies for breach of an option
2.5.2 Preference contracts
6
, 2.5.2.1 Right of pre-emption
2.5.2.2 Right of pre-emption compared with an option
2.5.2.3 The obligations of the grantor
2.5.2.4 The trigger event in a pre-emption agreement
2.5.2.5 The offer must be a bona fide one
2.5.2.6 Duration of the offer
2.5.2.7 Formalities
2.5.2.8 Remedies for breach
CHAPTER 3 MISTAKE/ABSENCE OF CONSENSUS – CHRIS PRETORIUS
3.1 Introduction
3.2 Classification of mistake
3.2.1 Unilateral, mutual and common mistake
3.2.2 Irrelevant and relevant mistake
3.2.3 Material and non-material mistake
2.3.3.1 Material mistake
3.2.3.2 Non-material mistake
3.2.4 Traditional classification of material and non-material mistake
3.2.5 Mistake of law and mistake of fact
3.3 Limitations of the will theory
3.4 Reliance-based correctives
3.5 The subjective approach as qualified by estoppel and quasi-mutual assent
3.5.1 The doctrine of estoppel
3.5.2 The doctrine of quasi-mutual assent or (direct) reliance theory
3.6 The objective approach as qualified by the iustus error doctrine
3.6.1 The declaration theory in case law
3.6.2 The iustus error doctrine
3.7 Reconciliation of the subjective and objective approaches
3.7.1 Sonap Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA)
(Pty) Ltd) v Pappadogianis
3.7.2 Slip Knot Investments 777 (Pty) Ltd v Du Toit
3.7.3 Direct or indirect reliance?
3.8 Common mistake
3.9 Rectification
CHAPTER 4 IMPROPERLY OBTAINED CONSENSUS – DALE HUTCHISON
4.1 Introduction
4.1.1 Restitutio in integrum
4.1.2 Delictual damages
4.1.3 A general ground for rescission?
4.2 Misrepresentation
4.2.1 Misrepresentation distinguished from other pre-contractual
misstatements
4.2.1.1 Warranties or contractual terms
4.2.1.2 Opinions, statements as to the future and statements of
law
4.2.1.3 Puffs (simplex commendatio)
4.2.1.4 Dicta et promissa
7
, 4.2.2 Misrepresentation and mistake
4.2.3 Remedies for misrepresentation
4.2.3.1 Rescission and restitution
4.2.3.2 Misrepresentation as a defence
4.2.3.3 Damages
4.2.4 Misrepresentation by silence: non-disclosure
4.3 Duress
4.3.1 The nature of coercion
4.3.2 The reasonableness of the fear
4.3.3 The object of the threat
4.3.4 The imminence of the harm
4.3.5 The unlawfulness of the threat
4.3.6 Damage
4.3.7 Duress by a third party
4.4 Undue influence
4.4.1 Origins of the doctrine
4.4.2 Requirements
4.4.3 Abuse of circumstances
4.5 Commercial bribery
4.6 The road ahead: further grounds for rescission?
4.7 Consumer’s right to fair and honest dealing under the Consumer Protection
Act
PART THREE REQUIREMENTS OF A VALID CONTRACT
CHAPTER 5 CONTRACTUAL CAPACITY – BIRGIT KUSCHKE
5.1 Legal capacity
5.2 Contractual capacity
5.3 Natural persons
5.3.1 Persons without contractual capacity
5.3.2 Persons with limited contractual capacity
5.3.2.1 Minors
5.3.2.2 Married persons
5.3.2.3 Insolvent persons
5.3.2.4 Prodigals
5.3.3 Persons with full contractual capacity
5.4 Juristic persons
5.5 The State
CHAPTER 6 FORMALITIES – TOMAS FLOYD AND CHRIS PRETORIUS
6.1 Introduction
6.2 Formalities prescribed by law
6.2.1 Prescribed formalities required for validity
6.2.1.1 Alienation of land
6.2.1.2 Suretyship
6.2.1.3 Donation
6.2.2 Prescribed formalities required for enforcement against third parties
6.2.2.1 Antenuptial contracts
8
, 6.2.2.2 Long leases of land
6.2.3 Formalities in electronic contracts
6.2.4 Diverse other statutory instances
6.3 Formalities stipulated by the parties
6.3.1 Creation of the contract
6.3.2 Variation of the contract: non-variation clauses and the Shifren
principle
6.3.3 Cancellation of the contract: non-cancellation clauses
6.3.4 Limiting the Shifren principle
6.3.4.1 Restrictive interpretation
6.3.4.2 Where enforcement would be against public policy
6.3.4.3 Where a party is estopped from enforcing a non-variation
clause
6.3.5 Non-waiver clause
CHAPTER 7 LEGALITY – TOMAS FLOYD AND CHRIS PRETORIUS
7.1 Introduction
7.2 Illegal contracts that are void
7.2.1 Public interest
7.2.2 The conclusion, performance and object of the contract must be lawful
7.2.3 Specific examples of illegal or invalid contracts
7.2.3.1 Contracts against good morals
7.2.3.2 Statutory illegality
7.2.3.3 Constitutional invalidity
7.2.3.3.1 Private agreements
7.2.3.3.2 Public agreements
7.2.3.4 Pacta de quota litis, champerty and maintenance
7.2.3.5 Unfair contracts
7.2.3.6 Unfair enforcement of a contract
7.2.4 The consequences of a contract that is void for illegality
7.2.4.1 Contract cannot be enforced (ex turpi rule)
7.2.4.2 Severing the illegal part of a contract
7.2.4.3 Reclaiming performance that has been made in terms of
an illegal contract (the par delictum rule)
7.3 Illegal contracts that are valid but unenforceable
7.3.1 Wagering and gambling contracts
7.3.1.1 The common law
7.3.1.2 The National Gambling Act 7 of 2004
7.3.2 Agreements in restraint of trade
CHAPTER 8 POSSIBILITY AND CERTAINTY – JACQUES DU PLESSIS AND CHRIS
PRETORIUS
8.1 Possibility
8.1.1 The general rule: impossibility of performance prevents the creation
of obligations
8.1.2 Different types of impossibility
8.1.2.1 Subjective and objective impossibility
8.1.2.2 Factual and practical impossibility
8.1.2.3 Legal impossibility
9
, 8.1.2.4 Initial impossibility, supervening impossibility and
making performance impossible
8.1.3 Exceptional cases: liability despite impossibility
8.1.3.1 Contemplation of impossibility and the assumption of
risk
8.1.3.2 Warranty: guaranteeing performance
8.1.4 The consequences of impossibility
8.2 Certainty
8.2.1 The general rule: uncertainty about what has to be performed prevents
the creation of obligations
8.2.2 The application of the certainty requirement: some practical examples
8.2.2.1 The contract aimed at creating another contract: the
pactum de contrahendo or ‘agreement to agree’
8.2.2.2 Vague language and gaps
8.2.2.3 Contracts of indefinite duration
8.2.2.4 Contracts containing a mechanism whereby certainty can
be obtained
8.2.3 The consequences of not meeting the certainty requirement
PART FOUR CONTENTS AND OPERATION OF A CONTRACT
CHAPTER 9 PARTIES TO CONTRACTS
9.1 Number of parties
9.2 Multiplicity of parties
9.2.1 Divisibility of the performance
9.2.2 Simple joint liability and entitlement
9.2.3 Joint and several (in solidum) liability or entitlement
9.2.4 Collective joint liability and entitlement
9.2.5 Several liability
9.3 Contracts and third parties
9.3.1 Privity of contract
9.3.2 Representation: contracting through an agent
9.3.2.1 Relationship between principal and agent
9.3.2.2 Relationship between principal and third party
9.3.2.3 Relationship between agent and third party
9.3.3 The contract for the benefit of a third party (stipulatio alteri)
9.3.4 Transfer of rights and duties to a third party
9.3.5 Performance by a third party
9.3.6 Performance made to a third party
CHAPTER 10 OBLIGATIONS AND TERMS – CATHERINE MAXWELL
10.1 Introduction
10.2 Obligations
10.2.1 Classification of obligations
10.2.2 Civil, natural and moral obligations
10.2.3 Reciprocal obligations
10.2.4 Simple, alternative, generic or facultative obligations
10.2.5 Divisible or indivisible performances and contracts
10.3 Terms
10
, 10.3.1 Essentialia, naturalia, incidentalia
10.3.2 Express terms
10.3.2.1 Signed contracts: the caveat subscriptor rule
10.3.2.2 Standard-form contracts
10.3.2.3 Unsigned documents
10.3.2.4 Ticket cases
10.3.2.5 Notices
10.3.2.6 The Consumer Protection Act (CPA) 68 of 2008
10.3.2.7 Terms prohibited by law
10.3.2.8 Tacit contracts
10.3.3 Implied terms
10.3.3.1 Terms implied ex lege
10.3.3.2 Terms implied ex consensu (tacit terms)
10.3.4 Material terms
10.3.5 Conditions and their effect on the contract
10.3.5.1 Positive and negative conditions
10.3.5.2 Suspensive and resolutive conditions
10.3.5.3 Potestative, casual and mixed conditions
10.3.5.4 Interference in the fulfilment of conditions
10.3.6 Time clauses
10.3.7 Other common contractual terms
10.3.7.1 Suppositions
10.3.7.2 Modal clauses
10.3.7.3 Exemption clauses
10.3.7.4 Non-variation clauses
10.3.7.5 Governing law clause
CHAPTER 11 INTERPRETATION OF CONTRACTS – CATHERINE MAXWELL
11.1 Introduction
11.2 The purpose of the contract
11.3 The words used by the parties
11.4 The textual context
11.5 The broader context
11.5.1 The parol evidence rule
11.5.1.1 The integration aspect of the parol evidence rule
11.5.1.2 The interpretation aspect of the parol evidence rule
11.5.1.3 Practical difficulties in excluding extrinsic evidence: the
‘open sesame’ of ambiguity
11.5.1.4 Practical and theoretical difficulties in excluding
extrinsic evidence: the distinction between background and
surrounding circumstances
11.5.1.5 The Supreme Court of Appeal’s current approach to
extrinsic evidence
11.5.1.6 The Constitutional Court’s response: University of
Johannesburg v Auckland Park Theological Seminary
11.5.2 Circumventing the parol evidence rule
11.5.2.1 Alleging a tacit term
11.5.2.2 Applying for rectification
11
,PART ONE NATURE AND BASIS OF CONTRACT
Chapter 1 the nature and basis of contract
PART TWO FORMATION OF CONTRACT
Chapter 2 offer and acceptance
Chapter 3 mistake/absence of consensus
Chapter 4 improperly obtained consensus
PART THREE REQUIREMENTS OF A VALID CONTRACT
Chapter 5 contractual capacity
Chapter 6 formalities
Chapter 7 legality
Chapter 8 possibility and certainty
PART FOUR CONTENTS AND OPERATION OF A CONTRACT
Chapter 9 parties to contracts
Chapter 10 obligations and terms
Chapter 11 interpretation of contracts
PART FIVE BREACH OF CONTRACT
Chapter 12 forms of breach
Chapter 13 remedies for breach
PART SIX TRANSFER AND TERMINATION OF RIGHTS AND
OBLIGATIONS
Chapter 14 cession
Chapter 15 termination of obligations
PART SEVEN DRAFTING
Chapter 16 drafting of contracts
PART EIGHT THE CONSUMER PROTECTION ACT
Chapter 17 the consumer protection act 68 of 2008
4
,PART ONE NATURE AND BASIS OF CONTRACT
CHAPTER 1 THE NATURE AND BASIS OF CONTRACT – DALE HUTCHISON
1.1 The notion of contract
1.1.1 Contract as an agreement intended to create enforceable obligations
1.1.2 Legally binding agreements that are not contracts
1.1.3 Legally binding agreements that are more than just contracts
1.1.4 Definition of contract
1.2 Requirements for a valid contract
1.3 The nature of contract
1.4 Contract and the law of obligations
1.4.1 The concept of obligation
1.4.2 Contract and delict
1.4.3 Contract and enrichment
1.5 Contract and the law of property
1.6 The development of the modern notion of contract
1.6.1 Roman law
1.6.2 Roman-Dutch law
1.6.3 Causa and consideration: a celebrated dispute
1.7 The impact of the Constitution
1.8 The basis of contract
1.8.1 Introduction
1.8.2 Actual subjective agreement (consensus)
1.8.3 Apparent or objective agreement
1.8.4 Theories of contract
1.8.5 Approach to contract: subjective or objective?
1.8.6 Dual basis of contract in modern law
1.8.7 Proving the existence of a contract
1.9 Cornerstones of contract
1.9.1 The goals of contract law
1.9.2 Competing values in the law of contract
1.9.3 Freedom and sanctity of contract
1.9.4 Good faith, equity and public policy in contract
1.10 The Consumer Protection Act 68 of 2008 (CPA)
PART TWO FORMATION OF CONTRACT
CHAPTER 2 OFFER AND ACCEPTANCE
2.1 Introduction
2.2 The offer
2.2.1 Legal effect of an offer
2.2.2 Requirements for a valid offer
5
, 2.2.2.1 The offer must be firm
2.2.2.2 The offer must be complete
2.2.2.3 The offer must be clear and certain
2.2.2.4 The Consumer Protection Act 68 of 2008 (CPA)
2.2.3 Offers to the public
2.2.3.1 Advertisements
2.2.3.2 Promises of reward
2.2.3.3 Calls for tenders
2.2.3.4 Auctions
2.2.4 Termination of an offer
2.2.4.1 Rejection of the offer
2.2.4.2 Death of either party
2.2.4.3 Effluxion of the prescribed time, or of a reasonable time
2.2.4.4 Revocation of the offer
2.2.4.5 Loss of legal capacity to act
2.2.4.6 Acceptance of offer
2.3 The acceptance
2.3.1 Requirements for a valid acceptance
2.3.1.1 The acceptance must be unqualified
2.3.1.2 The acceptance must be by the person to whom the offer
was made
2.3.1.3 The acceptance must be a conscious response to the offer
2.3.1.4 The acceptance must be in the form prescribed by the
offeror (if any)
2.3.2 When and where acceptance takes effect
2.3.2.1 The information theory as the general rule in our law
2.3.2.2 Exceptions to the general rule
2.3.2.3 Where the offeror stipulates a different method of
acceptance
2.3.2.4 Postal contracts: the expedition theory applies
2.3.2.5 The scope of the exception
2.3.2.6 Criticism of the expedition theory
2.3.2.7 Revocation or neutralisation of the posted acceptance
2.3.2.8 Electronic contracts: the reception theory applies
2.4 Breaking off negotiations
2.5 Pacta de contrahendo
2.5.1 Options
2.5.1.1 Juristic nature of an option
2.5.1.2 Earlier views on the nature of an option
2.5.1.3 Unilateral declaration that the offer is irrevocable
2.5.1.4 Legal effect of an option
2.5.1.5 Duration of the option
2.5.1.6 Transferability of an option
2.5.1.7 Formalities: options to buy or sell land
2.5.1.8 Remedies for breach of an option
2.5.2 Preference contracts
6
, 2.5.2.1 Right of pre-emption
2.5.2.2 Right of pre-emption compared with an option
2.5.2.3 The obligations of the grantor
2.5.2.4 The trigger event in a pre-emption agreement
2.5.2.5 The offer must be a bona fide one
2.5.2.6 Duration of the offer
2.5.2.7 Formalities
2.5.2.8 Remedies for breach
CHAPTER 3 MISTAKE/ABSENCE OF CONSENSUS – CHRIS PRETORIUS
3.1 Introduction
3.2 Classification of mistake
3.2.1 Unilateral, mutual and common mistake
3.2.2 Irrelevant and relevant mistake
3.2.3 Material and non-material mistake
2.3.3.1 Material mistake
3.2.3.2 Non-material mistake
3.2.4 Traditional classification of material and non-material mistake
3.2.5 Mistake of law and mistake of fact
3.3 Limitations of the will theory
3.4 Reliance-based correctives
3.5 The subjective approach as qualified by estoppel and quasi-mutual assent
3.5.1 The doctrine of estoppel
3.5.2 The doctrine of quasi-mutual assent or (direct) reliance theory
3.6 The objective approach as qualified by the iustus error doctrine
3.6.1 The declaration theory in case law
3.6.2 The iustus error doctrine
3.7 Reconciliation of the subjective and objective approaches
3.7.1 Sonap Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA)
(Pty) Ltd) v Pappadogianis
3.7.2 Slip Knot Investments 777 (Pty) Ltd v Du Toit
3.7.3 Direct or indirect reliance?
3.8 Common mistake
3.9 Rectification
CHAPTER 4 IMPROPERLY OBTAINED CONSENSUS – DALE HUTCHISON
4.1 Introduction
4.1.1 Restitutio in integrum
4.1.2 Delictual damages
4.1.3 A general ground for rescission?
4.2 Misrepresentation
4.2.1 Misrepresentation distinguished from other pre-contractual
misstatements
4.2.1.1 Warranties or contractual terms
4.2.1.2 Opinions, statements as to the future and statements of
law
4.2.1.3 Puffs (simplex commendatio)
4.2.1.4 Dicta et promissa
7
, 4.2.2 Misrepresentation and mistake
4.2.3 Remedies for misrepresentation
4.2.3.1 Rescission and restitution
4.2.3.2 Misrepresentation as a defence
4.2.3.3 Damages
4.2.4 Misrepresentation by silence: non-disclosure
4.3 Duress
4.3.1 The nature of coercion
4.3.2 The reasonableness of the fear
4.3.3 The object of the threat
4.3.4 The imminence of the harm
4.3.5 The unlawfulness of the threat
4.3.6 Damage
4.3.7 Duress by a third party
4.4 Undue influence
4.4.1 Origins of the doctrine
4.4.2 Requirements
4.4.3 Abuse of circumstances
4.5 Commercial bribery
4.6 The road ahead: further grounds for rescission?
4.7 Consumer’s right to fair and honest dealing under the Consumer Protection
Act
PART THREE REQUIREMENTS OF A VALID CONTRACT
CHAPTER 5 CONTRACTUAL CAPACITY – BIRGIT KUSCHKE
5.1 Legal capacity
5.2 Contractual capacity
5.3 Natural persons
5.3.1 Persons without contractual capacity
5.3.2 Persons with limited contractual capacity
5.3.2.1 Minors
5.3.2.2 Married persons
5.3.2.3 Insolvent persons
5.3.2.4 Prodigals
5.3.3 Persons with full contractual capacity
5.4 Juristic persons
5.5 The State
CHAPTER 6 FORMALITIES – TOMAS FLOYD AND CHRIS PRETORIUS
6.1 Introduction
6.2 Formalities prescribed by law
6.2.1 Prescribed formalities required for validity
6.2.1.1 Alienation of land
6.2.1.2 Suretyship
6.2.1.3 Donation
6.2.2 Prescribed formalities required for enforcement against third parties
6.2.2.1 Antenuptial contracts
8
, 6.2.2.2 Long leases of land
6.2.3 Formalities in electronic contracts
6.2.4 Diverse other statutory instances
6.3 Formalities stipulated by the parties
6.3.1 Creation of the contract
6.3.2 Variation of the contract: non-variation clauses and the Shifren
principle
6.3.3 Cancellation of the contract: non-cancellation clauses
6.3.4 Limiting the Shifren principle
6.3.4.1 Restrictive interpretation
6.3.4.2 Where enforcement would be against public policy
6.3.4.3 Where a party is estopped from enforcing a non-variation
clause
6.3.5 Non-waiver clause
CHAPTER 7 LEGALITY – TOMAS FLOYD AND CHRIS PRETORIUS
7.1 Introduction
7.2 Illegal contracts that are void
7.2.1 Public interest
7.2.2 The conclusion, performance and object of the contract must be lawful
7.2.3 Specific examples of illegal or invalid contracts
7.2.3.1 Contracts against good morals
7.2.3.2 Statutory illegality
7.2.3.3 Constitutional invalidity
7.2.3.3.1 Private agreements
7.2.3.3.2 Public agreements
7.2.3.4 Pacta de quota litis, champerty and maintenance
7.2.3.5 Unfair contracts
7.2.3.6 Unfair enforcement of a contract
7.2.4 The consequences of a contract that is void for illegality
7.2.4.1 Contract cannot be enforced (ex turpi rule)
7.2.4.2 Severing the illegal part of a contract
7.2.4.3 Reclaiming performance that has been made in terms of
an illegal contract (the par delictum rule)
7.3 Illegal contracts that are valid but unenforceable
7.3.1 Wagering and gambling contracts
7.3.1.1 The common law
7.3.1.2 The National Gambling Act 7 of 2004
7.3.2 Agreements in restraint of trade
CHAPTER 8 POSSIBILITY AND CERTAINTY – JACQUES DU PLESSIS AND CHRIS
PRETORIUS
8.1 Possibility
8.1.1 The general rule: impossibility of performance prevents the creation
of obligations
8.1.2 Different types of impossibility
8.1.2.1 Subjective and objective impossibility
8.1.2.2 Factual and practical impossibility
8.1.2.3 Legal impossibility
9
, 8.1.2.4 Initial impossibility, supervening impossibility and
making performance impossible
8.1.3 Exceptional cases: liability despite impossibility
8.1.3.1 Contemplation of impossibility and the assumption of
risk
8.1.3.2 Warranty: guaranteeing performance
8.1.4 The consequences of impossibility
8.2 Certainty
8.2.1 The general rule: uncertainty about what has to be performed prevents
the creation of obligations
8.2.2 The application of the certainty requirement: some practical examples
8.2.2.1 The contract aimed at creating another contract: the
pactum de contrahendo or ‘agreement to agree’
8.2.2.2 Vague language and gaps
8.2.2.3 Contracts of indefinite duration
8.2.2.4 Contracts containing a mechanism whereby certainty can
be obtained
8.2.3 The consequences of not meeting the certainty requirement
PART FOUR CONTENTS AND OPERATION OF A CONTRACT
CHAPTER 9 PARTIES TO CONTRACTS
9.1 Number of parties
9.2 Multiplicity of parties
9.2.1 Divisibility of the performance
9.2.2 Simple joint liability and entitlement
9.2.3 Joint and several (in solidum) liability or entitlement
9.2.4 Collective joint liability and entitlement
9.2.5 Several liability
9.3 Contracts and third parties
9.3.1 Privity of contract
9.3.2 Representation: contracting through an agent
9.3.2.1 Relationship between principal and agent
9.3.2.2 Relationship between principal and third party
9.3.2.3 Relationship between agent and third party
9.3.3 The contract for the benefit of a third party (stipulatio alteri)
9.3.4 Transfer of rights and duties to a third party
9.3.5 Performance by a third party
9.3.6 Performance made to a third party
CHAPTER 10 OBLIGATIONS AND TERMS – CATHERINE MAXWELL
10.1 Introduction
10.2 Obligations
10.2.1 Classification of obligations
10.2.2 Civil, natural and moral obligations
10.2.3 Reciprocal obligations
10.2.4 Simple, alternative, generic or facultative obligations
10.2.5 Divisible or indivisible performances and contracts
10.3 Terms
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, 10.3.1 Essentialia, naturalia, incidentalia
10.3.2 Express terms
10.3.2.1 Signed contracts: the caveat subscriptor rule
10.3.2.2 Standard-form contracts
10.3.2.3 Unsigned documents
10.3.2.4 Ticket cases
10.3.2.5 Notices
10.3.2.6 The Consumer Protection Act (CPA) 68 of 2008
10.3.2.7 Terms prohibited by law
10.3.2.8 Tacit contracts
10.3.3 Implied terms
10.3.3.1 Terms implied ex lege
10.3.3.2 Terms implied ex consensu (tacit terms)
10.3.4 Material terms
10.3.5 Conditions and their effect on the contract
10.3.5.1 Positive and negative conditions
10.3.5.2 Suspensive and resolutive conditions
10.3.5.3 Potestative, casual and mixed conditions
10.3.5.4 Interference in the fulfilment of conditions
10.3.6 Time clauses
10.3.7 Other common contractual terms
10.3.7.1 Suppositions
10.3.7.2 Modal clauses
10.3.7.3 Exemption clauses
10.3.7.4 Non-variation clauses
10.3.7.5 Governing law clause
CHAPTER 11 INTERPRETATION OF CONTRACTS – CATHERINE MAXWELL
11.1 Introduction
11.2 The purpose of the contract
11.3 The words used by the parties
11.4 The textual context
11.5 The broader context
11.5.1 The parol evidence rule
11.5.1.1 The integration aspect of the parol evidence rule
11.5.1.2 The interpretation aspect of the parol evidence rule
11.5.1.3 Practical difficulties in excluding extrinsic evidence: the
‘open sesame’ of ambiguity
11.5.1.4 Practical and theoretical difficulties in excluding
extrinsic evidence: the distinction between background and
surrounding circumstances
11.5.1.5 The Supreme Court of Appeal’s current approach to
extrinsic evidence
11.5.1.6 The Constitutional Court’s response: University of
Johannesburg v Auckland Park Theological Seminary
11.5.2 Circumventing the parol evidence rule
11.5.2.1 Alleging a tacit term
11.5.2.2 Applying for rectification
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