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Memorandum
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MEMORANDUM – EXERCISE QUESTION 03FIRST SEMESTER
This question is a self-assessment exercise which does not contribute
towards your semester mark.
X contracts with Y for the latter (Y) to build and fit a security gate for the entrance of
her (X’s) home. They agree that Y will use materials of a reasonably good standard to
do the job. Y builds the gate and fits it with an electric motor which is activated with a
remote control. X pays Y the contractual amount agreed upon. A week later the gate
gets stuck while it is half-way open, as a result of defective materials used to build the
gate. The costs of repairing the gate amount to R15 000 and X wants to claim this
amount from Y. Will X succeed with this claim? Discuss fully.
[20]
Answer
Identifying the problem
This question deals with one of the remedies for breach of contract by Y, as she used
defective materials to build the gate. As a result of this breach, X now seeks to claim
damages. The type of breach that has transpired is positive malperformance on the
part of Y, and the damages claimed by X will be determined on the basis of whether
such damages constitute general damages.
Discussing the relevant law applicable to the problem, referring to the relevant
case law, AND applying the law to the facts of the problem
It has to be considered if X is entitled to R15 000 compensation from Y for the cost of
repairing the gate.
In order to succeed with a claim for damages as a result of a breach of contract the
innocent party (X) must prove the following:
(1) Breach of contract has occurred.
(2) The innocent party has suffered financial or patrimonial loss
(3) There is a factual causal link between the breach and the loss
(4) The loss is not too remote a consequence of the breach (legal causation)
(1) Breach of contract has occurred
Positive malperformance takes place where a contracting party does not comply with
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