COMMERCIAL LAW 1
LAWS1000
CHAPTERS 8, 10 & 11 SUMMARIES
DISCLAIMER:
These summaries are prepared with the intent to closely align with the content of the specified textbook. Full credit and acknowledgment are given to the authors and publishers of the
original textbook for the material on which these summaries are based. All information taken directly from:
Pillay, K. and Du Plessis, R. (2023) Commercial law: Fresh perspectives. 4th edn. Cape Town, South Africa, Western Cape: Maskew Miller Learning. .
While every effort has been made to ensure accuracy, the author of these summaries cannot guarantee that the information contained herein is entirely free from errors or omissions. As
such, no liability is accepted for any inaccuracies, errors, or any resultant consequences arising from the use of this material.
Users are encouraged to refer to the original textbook for comprehensive understanding and to verify any information. Any reliance you place on the content of these summaries is strictly at
your own risk.
Be advised that the distribution of these notes via any platform, including but not limited to email, WhatsApp, AirDrop, or any other digital means, leaves an identifiable trail. Unauthorized
distribution or reproduction of these materials may be considered a violation of plagiarism and copyright laws in South Africa. Perpetrators found involved in such actions are liable to be
prosecuted under the relevant legal provisions. Exercise caution and respect intellectual property rights.
Unauthorised dissemination/distribution of this document is strictly prohibited.
By downloading this document, the purchaser acknowledges and agrees to the following terms:
The purchaser accepts full responsibility to refrain from distributing, sharing, or reproducing this document, in whole or in part, without the express written consent of the author. Any
unauthorized distribution is strictly prohibited.
Should the purchaser be found distributing or enabling the distribution of this document, they acknowledge that they may be subject to legal action. The author reserves the right to take
legal recourse, including but not limited to initiating court proceedings, against any individual or entity found in violation of these terms.
Your download and use of this document indicate your acceptance of these terms and your understanding of the potential legal consequences of non-compliance.
, CHAPTER 8: Contents of a Contract
Identifying Terms by Their Role
• Term = a clause or provision in a contract, which sets out the respective rights, duties and obligations of the parties
• Contractual terms are intended to be legally binding on the parties
• When parties enter a contract, they reach agreement about the rights and obligations of each party
• This agreement sets out, in detail, exactly what the contract requires each party to do
• Three different types of terms:
1) Terms that identify a contract as a specific contract, called essentialia
2) Terms that are implied into a specific contract by law, called naturalia
3) Other terms that the parties have agreed to, called incidentalia
• Essentialia
- All contracts must follow the general principles of contract law
- BUT there are some contracts, called specific contracts, where particular terms must be included eg. Contracts
of sale and leases
- Essential terms of a contract, which identify that contract as a specific contract, are called essentialia
- Essentialia are thus the terms that must be present in a contract in order for it to be classified as a specific type of
contract
- Parties to the contract must agree on these essential terms for the contract to be considered a specific contract
- Eg. For a contract to be a valid contract of lease, there must be consensus about the following essentialia:
~ Object being leased
~ Length of the lease
~ Amount of rent payable
- Eg. For a contract of sale to be valid, there must be consensus about the following essentialia:
~ The item being sold
~ Price payable
• Naturalia
- The importance of classifying contracts is that, once a contract has been identified to be a particular specific
contract, there are terms that the law automatically reads into the contract
- These terms are naturalia of the contracts
- These clauses are implied by law
- Naturalia apply automatically to a contract even if the parties have not specifically agreed to them
- However, it is possible for the contracting parties to change naturalia by agreement
• Incidentalia
- The terms in a contract that parties have agreed to, but which are neither the essentialia or naturalia of the
contract
- These are the terms that meet the specific needs of the contracting parties
Identifying Terms by How They Become a Part of a Contract
• The second way we classify terms is by how they become a part of a contract
• Terms incorporated into a contract can be:
- Express
- Implied
- Tacit
- Imposed
LAWS1000
CHAPTERS 8, 10 & 11 SUMMARIES
DISCLAIMER:
These summaries are prepared with the intent to closely align with the content of the specified textbook. Full credit and acknowledgment are given to the authors and publishers of the
original textbook for the material on which these summaries are based. All information taken directly from:
Pillay, K. and Du Plessis, R. (2023) Commercial law: Fresh perspectives. 4th edn. Cape Town, South Africa, Western Cape: Maskew Miller Learning. .
While every effort has been made to ensure accuracy, the author of these summaries cannot guarantee that the information contained herein is entirely free from errors or omissions. As
such, no liability is accepted for any inaccuracies, errors, or any resultant consequences arising from the use of this material.
Users are encouraged to refer to the original textbook for comprehensive understanding and to verify any information. Any reliance you place on the content of these summaries is strictly at
your own risk.
Be advised that the distribution of these notes via any platform, including but not limited to email, WhatsApp, AirDrop, or any other digital means, leaves an identifiable trail. Unauthorized
distribution or reproduction of these materials may be considered a violation of plagiarism and copyright laws in South Africa. Perpetrators found involved in such actions are liable to be
prosecuted under the relevant legal provisions. Exercise caution and respect intellectual property rights.
Unauthorised dissemination/distribution of this document is strictly prohibited.
By downloading this document, the purchaser acknowledges and agrees to the following terms:
The purchaser accepts full responsibility to refrain from distributing, sharing, or reproducing this document, in whole or in part, without the express written consent of the author. Any
unauthorized distribution is strictly prohibited.
Should the purchaser be found distributing or enabling the distribution of this document, they acknowledge that they may be subject to legal action. The author reserves the right to take
legal recourse, including but not limited to initiating court proceedings, against any individual or entity found in violation of these terms.
Your download and use of this document indicate your acceptance of these terms and your understanding of the potential legal consequences of non-compliance.
, CHAPTER 8: Contents of a Contract
Identifying Terms by Their Role
• Term = a clause or provision in a contract, which sets out the respective rights, duties and obligations of the parties
• Contractual terms are intended to be legally binding on the parties
• When parties enter a contract, they reach agreement about the rights and obligations of each party
• This agreement sets out, in detail, exactly what the contract requires each party to do
• Three different types of terms:
1) Terms that identify a contract as a specific contract, called essentialia
2) Terms that are implied into a specific contract by law, called naturalia
3) Other terms that the parties have agreed to, called incidentalia
• Essentialia
- All contracts must follow the general principles of contract law
- BUT there are some contracts, called specific contracts, where particular terms must be included eg. Contracts
of sale and leases
- Essential terms of a contract, which identify that contract as a specific contract, are called essentialia
- Essentialia are thus the terms that must be present in a contract in order for it to be classified as a specific type of
contract
- Parties to the contract must agree on these essential terms for the contract to be considered a specific contract
- Eg. For a contract to be a valid contract of lease, there must be consensus about the following essentialia:
~ Object being leased
~ Length of the lease
~ Amount of rent payable
- Eg. For a contract of sale to be valid, there must be consensus about the following essentialia:
~ The item being sold
~ Price payable
• Naturalia
- The importance of classifying contracts is that, once a contract has been identified to be a particular specific
contract, there are terms that the law automatically reads into the contract
- These terms are naturalia of the contracts
- These clauses are implied by law
- Naturalia apply automatically to a contract even if the parties have not specifically agreed to them
- However, it is possible for the contracting parties to change naturalia by agreement
• Incidentalia
- The terms in a contract that parties have agreed to, but which are neither the essentialia or naturalia of the
contract
- These are the terms that meet the specific needs of the contracting parties
Identifying Terms by How They Become a Part of a Contract
• The second way we classify terms is by how they become a part of a contract
• Terms incorporated into a contract can be:
- Express
- Implied
- Tacit
- Imposed
