Requirements for conclusion of a valid contract
An agreement between at least 2 corresponding wills:
1) Consensus: Parties must have corresponding intentions regarding the proposed contract
and the serious intention of concluding the contract.
2) Contractual capacity: Parties must have necessary capacity to form a recognised intent.
3) Lawfulness/legality: not contrary to the common law/statutory law /public policy/good
morals.
4) Physical possibility: The performance must be determined/determinable and objectively
possible.
5) Formalities: Must comply with any formalities that law prescribes or agreed to by parties.
This refers to the external visible form of the contract.
Essentialia, Naturalia, Incidentalia
E – Essential minimum characteristics to identify it as a nominate contract or distinguish it from
other contracts.
N – Contractual provisions which naturally flows from a contract without parties having
specifically agreeing to, but it can be expressly excluded, e.g. latent defects warranty vs.
Voetstoots.
I – Additional terms and conditions which the parties wish to include, as well as any express
incidentalia that limit/change/exclude any of the naturalia.
Why NB to determine time and place of contract
To determine the status of the parties (age, solvency, mental status, etc.)
To determine which statutes and other legal principles apply to the contract of the parties.
To determine when contractual duties commence and rights accrue (due dates, interest
applicable).
To determine which court has jurisdiction in the event of a dispute.
Remedies to injured party – after breach of contract
Claims for specific performance of the contract. Natural remedy. Reinforces intention to
be bound to the agreement.
Cancellation of the contract. Drastic remedy. Nullifies intention to be bound to the
agreement.
Damages. Combination remedy. When injured party is worse off as a result of breach of
contract.
What forms of breach of contract?
1) Delay by debtor (mora debitoris) – If the debtor does not perform timeously i.t.o. the
contract.
2) Delay by creditor (mora creditoris) – If the creditor, due to his fault, fails to accept proper
performance by the debtor, or fails to co-operate to enable the debtor to perform.
3) Positive malperformance – Refers to the contents/quality of the performance which
debtor has to deliver i.t.o. the contract. Performance is delivered, but for some or other
reason, not the correct performance.
4) Repudiation – Where a party to a contract, by his words/conduct, and without lawful
justification, communicates to the other his/her unequivocal intention to no longer be
bound to his obligations i.t.o. the contract.
5) Performance rendered impossible
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