Assignment 1 Semester 1 2026
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Due Date: April 2026
QUESTION 1 (3 ANSWERS PROVIDED)
In terms of the will theory, consensus requires that the parties seriously intend to contract,
be of one mind regarding the material terms, and be aware that their minds have met.1 If a
material mistake excludes consensus, the contract is void ab initio.
In this scenario, both parties contracted on the basis that the merx was a genuine diamond
ring. After conclusion of the agreement, it was discovered that the ring was not a diamond at
all, but an imitation made of inferior artificial materials. The critical issue is whether
Raymond’s mistake relates to the nature of the subject matter (error in corpore) or merely to
a characteristic of the thing (error in substantia).
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QUESTION 1 (3 ANSWERS PROVIDED)
In terms of the will theory, consensus requires that the parties seriously intend to
contract, be of one mind regarding the material terms, and be aware that their minds
have met.1 If a material mistake excludes consensus, the contract is void ab initio.
In this scenario, both parties contracted on the basis that the merx was a genuine
diamond ring. After conclusion of the agreement, it was discovered that the ring was
not a diamond at all, but an imitation made of inferior artificial materials. The critical
issue is whether Raymond’s mistake relates to the nature of the subject matter (error
in corpore) or merely to a characteristic of the thing (error in substantia).
An error in substantia, namely a mistake regarding a quality or attribute of the object,
is generally not regarded as material in South African law.2 In Trollip v Jordaan3 the
purchaser was mistaken about certain characteristics of the farm, but the court held
that both parties had the same property in mind; therefore, there was no material
mistake excluding consensus. The emphasis is whether the parties intended to
contract regarding the same thing.
However, in Spenmac (Pty) Ltd v Tatrim CC4 the Supreme Court of Appeal
recognised that where the mistake relates to the nature of the subject matter itself, it
may amount to an error in corpore and thus be material. Hutchison and Pretorius
explain that the traditional classifications are not decisive; the real question is
whether the mistake concerns the content of the obligation rather than merely the
motive.5
Applying this approach, Raymond did not intend to purchase a ring that merely looks
like a diamond; he intended to purchase a genuine diamond ring. If the object
delivered is not a diamond at all, then the parties did not have the same thing in
mind. The mistake therefore relates to the nature of the merx and constitutes an
error in corpore, which is material.6
1
D Hutchison and CJ Pretorius (eds), The Law of Contract in South Africa 4th ed (Oxford University Press 2022)
83–85.
2
ibid 83–92.
3
Trollip v Jordaan 1961 (1) SA 238 (A).
4
Spenmac (Pty) Ltd v Tatrim CC 2015 (3) SA 46 (SCA).
5
Hutchison and Pretorius (n 1) 83–92.
6
Spenmac (n 4); Trollip (n 3).