Total: 100 Marks | Focus: Mistake, Influence, Formalities, Restraint of
Trade
SECTION A: Consensus & Mistake (25 Marks) Question: Lerato intends
to buy a specific thoroughbred horse named "Star" from a breeder,
Sipho. The written contract, prepared by Sipho, mistakenly lists the
horse as "Comet," an older, less valuable horse. Sipho knows Lerato
wants "Star" but hastily signs the contract anyway, hoping to force
Lerato to buy "Comet." Lerato signs without reading the name. Discuss
whether a valid contract exists. Memorandum:
Identify the issue (5): Material mistake (error in corpore). No
subjective consensus (Will Theory fails).
The Law (10): Apply the Reliance Theory and the Sonap Petroleum
test.
Application (10): Apply the three-fold Sonap test. Did Sipho have
a reasonable belief Lerato wanted Comet? No. Sipho knew her
true intention. He is "snatching at a bargain." Therefore, reliance
is unreasonable, and the contract is void.
SECTION B: Improperly Obtained Consensus (25 Marks) Question: A
private nurse, Nurse Ratched, cares for an elderly, isolated millionaire,
Mr. Vance. Over six months, she constantly tells him his family hates
him and refuses to give him his pain medication unless he signs a
contract selling his R5 million estate to her for R100,000. He signs.
Advise Mr. Vance's family on how to invalidate the contract.
Memorandum:
Identify the issue (5): Undue Influence. Subjective consensus
exists, but it was obtained improperly.
The Law (10): Cite Preller v Jordaan. List the four requirements:
(1) Influence obtained, (2) Weakened resistance, (3) Unscrupulous
use, (4) Prejudicial transaction.
, Application (10): Nurse Ratched used her fiduciary position to
weaken Mr. Vance's will (withholding medication) in an
unscrupulous manner to induce a highly prejudicial sale. The
contract is voidable (restitutio in integrum).
SECTION C: Formalities & Public Policy (25 Marks) Question: Critically
discuss the tension between commercial certainty and fairness in South
African contract law regarding non-variation clauses. Refer to the
Shifren principle and its constitutional development in Brisley v Drotsky
and Beadica 231 CC. Memorandum:
The Rule (8): Explain the Shifren principle. Non-variation clauses
are strictly binding; oral amendments are void to protect
commercial certainty.
The Defense (8): Discuss Brisley v Drotsky. Good faith is not a free-
floating rule to strike down contracts. Pacta sunt servanda is a
constitutional value.
The Constitutional Balance (9): Discuss Beadica 231 CC. A court
will only refuse enforcement if it is so unfair/unreasonable that it
is contrary to public policy. The onus rests on the party attacking
the clause.
SECTION D: Legality & Restraint of Trade (25 Marks)
Question: David, a software developer, signs a contract with TechCorp
promising not to work for any tech company in South Africa for 10
years after resigning. TechCorp provides no specialized training and has
no secret client lists. David resigns and joins a rival. TechCorp sues to
enforce the restraint. Will they succeed? Memorandum:
The Rule & Onus (8): Cite Magna Alloys. Restraints are valid in
principle. David bears the onus to prove it is unreasonable/against
public policy.
The Test (7): Cite the four-part Basson v Chilwan test.
Trade
SECTION A: Consensus & Mistake (25 Marks) Question: Lerato intends
to buy a specific thoroughbred horse named "Star" from a breeder,
Sipho. The written contract, prepared by Sipho, mistakenly lists the
horse as "Comet," an older, less valuable horse. Sipho knows Lerato
wants "Star" but hastily signs the contract anyway, hoping to force
Lerato to buy "Comet." Lerato signs without reading the name. Discuss
whether a valid contract exists. Memorandum:
Identify the issue (5): Material mistake (error in corpore). No
subjective consensus (Will Theory fails).
The Law (10): Apply the Reliance Theory and the Sonap Petroleum
test.
Application (10): Apply the three-fold Sonap test. Did Sipho have
a reasonable belief Lerato wanted Comet? No. Sipho knew her
true intention. He is "snatching at a bargain." Therefore, reliance
is unreasonable, and the contract is void.
SECTION B: Improperly Obtained Consensus (25 Marks) Question: A
private nurse, Nurse Ratched, cares for an elderly, isolated millionaire,
Mr. Vance. Over six months, she constantly tells him his family hates
him and refuses to give him his pain medication unless he signs a
contract selling his R5 million estate to her for R100,000. He signs.
Advise Mr. Vance's family on how to invalidate the contract.
Memorandum:
Identify the issue (5): Undue Influence. Subjective consensus
exists, but it was obtained improperly.
The Law (10): Cite Preller v Jordaan. List the four requirements:
(1) Influence obtained, (2) Weakened resistance, (3) Unscrupulous
use, (4) Prejudicial transaction.
, Application (10): Nurse Ratched used her fiduciary position to
weaken Mr. Vance's will (withholding medication) in an
unscrupulous manner to induce a highly prejudicial sale. The
contract is voidable (restitutio in integrum).
SECTION C: Formalities & Public Policy (25 Marks) Question: Critically
discuss the tension between commercial certainty and fairness in South
African contract law regarding non-variation clauses. Refer to the
Shifren principle and its constitutional development in Brisley v Drotsky
and Beadica 231 CC. Memorandum:
The Rule (8): Explain the Shifren principle. Non-variation clauses
are strictly binding; oral amendments are void to protect
commercial certainty.
The Defense (8): Discuss Brisley v Drotsky. Good faith is not a free-
floating rule to strike down contracts. Pacta sunt servanda is a
constitutional value.
The Constitutional Balance (9): Discuss Beadica 231 CC. A court
will only refuse enforcement if it is so unfair/unreasonable that it
is contrary to public policy. The onus rests on the party attacking
the clause.
SECTION D: Legality & Restraint of Trade (25 Marks)
Question: David, a software developer, signs a contract with TechCorp
promising not to work for any tech company in South Africa for 10
years after resigning. TechCorp provides no specialized training and has
no secret client lists. David resigns and joins a rival. TechCorp sues to
enforce the restraint. Will they succeed? Memorandum:
The Rule & Onus (8): Cite Magna Alloys. Restraints are valid in
principle. David bears the onus to prove it is unreasonable/against
public policy.
The Test (7): Cite the four-part Basson v Chilwan test.
