 Kenneth
 CRS
Mould
202
 CONSULTATION HOURS:
 MONDAY
TO
08:30-09:30.
THURSDAY:



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
UNCODIFIED.
 THEREFORE:
CONTRACT
CASE
LAW
EXTREMELY IMPORTANT.
 CASES
IS
IS
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
 1.

 2.
Afrox Healthcare v Strydom
2002 (6) SA 21
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 RomanDutch 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