Kenneth MouldCRS 202CONSULTATION HOURS:

MONDAY TO THURSDAY: 08:30-09:30.

Hutchison et al. “Law of Contract in South Africa.”2010. Oxford University Press.

AVAILABLE FROM VAN SCHAIKS and PROTEA BOOKSTORE, BRANDWAG CENTRE SHOP 33.

PRIMARY SOURCE FOR THIS COURSE.

COMBINATION OF 5 TEXTBOOKS, COURT CASES, ACADEMIC ARTICLES.

ONLY A GUIDELINE FOR PRESCRIBED TEXTBOOK.

RELATIVELY INCLUSIVE.

INDICATE WHAT IS EXPECTED FROM STUDENT: WHAT SHOULD STUDENT LEARN FROM SPECIFIC UNIT?

MERELY INDICATIVE OF POSSIBLE TEST AND/OR EXAM QUESTIONS, NOT NECESSARILY PRECISE.

LAW OF CONTRACT IS UNCODIFIED.

THEREFORE: CASE LAW IS EXTREMELY IMPORTANT.

CASES ILLUSTRATE THE PRACTICAL FUNCTIONING OF LAW OF CONTRACT PRINCIPLES.

Student’s responsibility to avoid clashes.

No leniency for failure to plan properly.

COMPULSORY.

ATTENDING LESS THAN 75% OF CLASSES WILL RESULT IN AN “INCOMPLETE” FOR THIS COURSE.

ADMISSION TO WRITE EXAMS WILL BE REFUSED.

Minimum of 40% to qualify for writing the exams.

Semester mark of 70%- Don’t have to write the exam.

MONDAY 27 February.

Make sure of time and venue.

Scope: Units 1-8.

Study guide: pp. 1-77

Corresponding parts in pre-scribed textbook.

• “THE LAW OF CONTRACT IS TRULY REMARKABLE. IN FACT, IT IS DIFFICULT TO THINK OF AN AREA OF LAW THAT PLAYS A MORE IMPORTANT PART IN EVERYDAY LIFE”

• Ryan Murray

• 1. Discuss the historical roots of the Law of Contract in South Africa.

• 2. Define the term “contract”• 3. Define the term “obligation”• 4. Classify and discuss the different types of obligations.• 5. Distinguish between the terms “contract” and

“obligation”• 6. Identify and discuss the characteristics or terms of a

contract.• 7. Distinguish between the terms “void” and “voidable”• 8. Analyze the Social and Constitutional values embedded

within the Law of Contract.• 9. List the requirements for a valid contract.

1. Afrox Healthcare v Strydom

2002 (6) SA 212. Brisley v Drotsky 2002 (4) \

SA 1 (SCA)3. Study guide: pp. 1-7

Roman-Dutch Law = South African Common Law.

1826- Should English Law replace Roman-Dutch Law in Cape Colony?

Louisa and Protector of Slaves v Van den Berg (1830).

Court made NO reference to English Law. Chose to follow Voet, Grotius and Groenewegen.

• Van der Merwe et al:

• “A promise to fulfill an obligation”• “An obligationary agreement”• “An agreement will be a contract if the parties intend to create

an obligation or obligations…”

• Christie:

• “An agreement…which is, or is intended to be. Enforceable at law.”

Bhana et al:

“Agreements between parties who have the intention to create legal rights and duties between them and which are legally binding upon the parties.

Major:

“A contract is defined as a legally enforceable agreement. This means that a contract is enforceable in the sense that there is a legal remedy available in case one party should fail to comply with his promise under the agreement”

• The Law of Contract falls under the Law of Obligations.

• Derived from Latin obligare- “to tie”; “to bind together”

• Legal bond= vinculum iuris• Relation entails: Right to performance (this is

the creditor’s right)• Duty to render performance (rests on the

debtor)• Delivery of a thing (dare) OR• The doing of something (facere) OR• Refraining from doing something (non facere)

Creditor’s right: Personal Right Also called a “claim” Debtor’s duty: “debt” THUS:

OBLIGATION ENTAILS:

• 1. Obligationes naturales:

• Cannot be enforced by court of law.• Unassisted contract of a minor.

• 2. Obligationes civiles:

• May be enforced by court of law.• Arising from contract of service/sale.

Obligation = consequence of a contract! Obligation may be terminated by fulfillment,

release or cancellation. The existence or operation of an obligation

may depend on a supposition, condition or a modus.

Term “breach of contract” should actually be “breach of obligation”!

Essentialia: Elements that identify and differentiate the

contract from other contracts.

Incidentalia: Clauses that make provision for residual

matters. Inserted by parties.

Naturalia: Legal principles of the law of contract that

will apply in the absence of clauses to that effect in the contract itself.

• VOID: • FROM BEGINNING• NO LEGAL EFFECT WHATSOEVER

• VOIDABLE:• VALID, BUT MAY BE DECLARED VOID• DURESS, MISREPRESENTATION, UNDUE

INFLUENCE

N.B. Study Van der Merwe et al pp. 11-18

Study guide pp. 6-7