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CLA1503 Assignment 02 Semester 02 2020 Questions and Suggested Solutions
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Commercial Law 1CCLA1503
Department of Mercantile Law
Assignment 02 for Semester 02 (compulsory)
Unique Number 624537
Due: 14 September 2020
4 RESOURCES
4.1 Prescribed book(s)
The prescribed textbook for CLA1503 is General Principles of Commercial Law 9th ed (2020)
Juta, co-authored by H Schulze, T Manamela, P Stoop, E Manamela, E Hurter, B Masuku and
C Stoop.
QUESTION 1
Floodwaters Local Council contracts with Bessy for the construction of a bridge for R5
million. The bridge must have four lanes: two for vehicle traffic, one for pedestrians and one
for trains. When finished, the bridge has only two lanes for vehicle traffic. The Local Council
finds out that it will cost another R3 million to add the lanes for pedestrians and trains. The
Local Council refuses to pay Bessy any money.
Which ONE of the following statements is CORRECT?
1. Bessy may use the exceptio non adimpleti contractus to institute action for payment.
2. The exceptio non adimpleti contractus does not apply to this case, because the contract
is not reciprocal.
3. The Local Council will have to pay Bessy the agreed R5 million if it decides to use the
defective bridge.
4. The Local Council could raise the exceptio non adimpleti contractus when Bessy claims
payment. (2)
Answer:
4 is CORRECT. The defence exceptio non adimpleti contractus is available to the local council
if Bessy claims payment, since Bessy has not rendered complete performance.
1 is INCORRECT. The exceptio non adimpleti contractus is a defence, and therefore can
never be used to institute action.
2 is INCORRECT. The contract in this instance is reciprocal, because the local council has to
pay a specified amount and, in turn, is entitled to construction of the bridge. Bessy, in turn,
, must construct the bridge and will then be entitled to payment. Both parties thus incur both
rights and obligations.
3 is INCORRECT. The local council will not necessarily have to pay the full contract price if it
decides to use the defective performance, since the party who has suffered damages as a
result of the other party’s breach of contract (in this instance, positive malperformance) is
also entitled to damages as a remedy.
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