PVL3702
Exam
Memos
,2|Page
CONTENTS PAGE.
PVL 3702 NOV – 2018 PAGE 3
PVL 3702 MAY – 2018 PAGE 9
PVL 3702 LONG QUESTIONS 2015 – 2017 PAGE 13
PVL 3702 May- June 2013 PAGE 33
PVL 3702 May- June 2014 PAGE 51
,3|Page
OCT –NOV 2018
SUGGESTED MEMO
Section A
1. 3
2. 4
3. 5
4. 2
5. 1
6. 5
7. 4
8. 4
9. 5
10. 2
11. 5
12. 1
13. 5
14. 3
15. 1
16. 3
17. 4
18. 3
19. 3
20. 5
21. 2
22. 3
23. 3
24. 5
25. 5
Section B.
Question 1
According to Blackburn v Mitchell when a person is in an emergency and has no choice
but to enter into an agreement it is regarded as abuse of circumstance. Our common
law on the point is by no means clear, but the general tenor appears to be that the
contract is enforceable. Pothier states that the agreement is valid but that the promised
performance of the victim must be reduced to what is reasonable.
, 4|Page
Question 2.
The par delictum rule, in pari delicto potior est conditio possidentis (where two parties
are equally morally guilty, the one who is in possession is in the stronger position) will
prevent restitution from taking place. This rule does not preclude the enforcement of an
unlawful contract by means of a claim for specific performance (that is the function of
the ex turpi rule), but it does prevent a party from reclaiming his or her performance in
terms of an unlawful contract. The par delictum rule is based on two considerations of
public policy: a court will not assist those who approach it with ‘unclean hands’, and
unlawful contracts should be discouraged.
The par delictum rule only applies where the parties are equally ‘guilty’ in concluding an
illegal agreement.Accordingly, the rule will not apply where the plaintiff is less guilty than
the defendant or is not morally guilty at all. A plaintiff’s guilt is diminished, for example,
where he or she did not know of the illegality of the contract or is reclaiming money paid
to a blackmailer. The par delictum rule may sometimes operate very harshly towards a
party who claims the return of his or her performance.
Consequently, in Jajbhay v Cassim,the Appellate Division held that this rule may be
relaxed in appropriate circumstances in order to do justice between the parties. The
underlying principle of the par delictum rule is public policy, but public policy also
demands that ‘justice shall be done between man and man’. The court considered the
facts of the case. A sub-lessor applied for the ejectment of a sub-lessee on the ground
that the sub-lease was illegal. Both parties were criminal offenders by being parties to
the sub-lease. The sub-lessor did not terminate the lease with a month’s notice as
provided for in the illegal contract, while the sub- lessee complied with his obligations
under the lease. Neither party was enriched at the expense of the other party. The court
consequently refused to relax the rule.
QUSTION 3
The essence of this problem is the question whether X and the owner of Dodgy Motors
have reached actual consensus or ostensible consensus. Albert
will not be contractually bound to pay for the additional repairs if this requirement for a
valid contract is absent.
At the outset, it must be determined whether agreement (consensus ad idem) as a
contractual basis exists between the parties, as required in terms of the will theory.
Consensus has three elements:
1. The parties must seriously intend to contract
Exam
Memos
,2|Page
CONTENTS PAGE.
PVL 3702 NOV – 2018 PAGE 3
PVL 3702 MAY – 2018 PAGE 9
PVL 3702 LONG QUESTIONS 2015 – 2017 PAGE 13
PVL 3702 May- June 2013 PAGE 33
PVL 3702 May- June 2014 PAGE 51
,3|Page
OCT –NOV 2018
SUGGESTED MEMO
Section A
1. 3
2. 4
3. 5
4. 2
5. 1
6. 5
7. 4
8. 4
9. 5
10. 2
11. 5
12. 1
13. 5
14. 3
15. 1
16. 3
17. 4
18. 3
19. 3
20. 5
21. 2
22. 3
23. 3
24. 5
25. 5
Section B.
Question 1
According to Blackburn v Mitchell when a person is in an emergency and has no choice
but to enter into an agreement it is regarded as abuse of circumstance. Our common
law on the point is by no means clear, but the general tenor appears to be that the
contract is enforceable. Pothier states that the agreement is valid but that the promised
performance of the victim must be reduced to what is reasonable.
, 4|Page
Question 2.
The par delictum rule, in pari delicto potior est conditio possidentis (where two parties
are equally morally guilty, the one who is in possession is in the stronger position) will
prevent restitution from taking place. This rule does not preclude the enforcement of an
unlawful contract by means of a claim for specific performance (that is the function of
the ex turpi rule), but it does prevent a party from reclaiming his or her performance in
terms of an unlawful contract. The par delictum rule is based on two considerations of
public policy: a court will not assist those who approach it with ‘unclean hands’, and
unlawful contracts should be discouraged.
The par delictum rule only applies where the parties are equally ‘guilty’ in concluding an
illegal agreement.Accordingly, the rule will not apply where the plaintiff is less guilty than
the defendant or is not morally guilty at all. A plaintiff’s guilt is diminished, for example,
where he or she did not know of the illegality of the contract or is reclaiming money paid
to a blackmailer. The par delictum rule may sometimes operate very harshly towards a
party who claims the return of his or her performance.
Consequently, in Jajbhay v Cassim,the Appellate Division held that this rule may be
relaxed in appropriate circumstances in order to do justice between the parties. The
underlying principle of the par delictum rule is public policy, but public policy also
demands that ‘justice shall be done between man and man’. The court considered the
facts of the case. A sub-lessor applied for the ejectment of a sub-lessee on the ground
that the sub-lease was illegal. Both parties were criminal offenders by being parties to
the sub-lease. The sub-lessor did not terminate the lease with a month’s notice as
provided for in the illegal contract, while the sub- lessee complied with his obligations
under the lease. Neither party was enriched at the expense of the other party. The court
consequently refused to relax the rule.
QUSTION 3
The essence of this problem is the question whether X and the owner of Dodgy Motors
have reached actual consensus or ostensible consensus. Albert
will not be contractually bound to pay for the additional repairs if this requirement for a
valid contract is absent.
At the outset, it must be determined whether agreement (consensus ad idem) as a
contractual basis exists between the parties, as required in terms of the will theory.
Consensus has three elements:
1. The parties must seriously intend to contract
