Kaya Borkowski
Contract Law
Semester 2 Cases
1. Sweet v Ragerguhara 1978
2. Singh v McCarthy Retail Ltd 2000
3. Datacolor International v Intamarket 2001
4. Culverwell v Brown 1990
5. Benson v SA Mutual Life Assurance Society 1986
6. ISEP Structural Engineering v Inland Exploration 1981
7. Basson v Hanna 2017
8. BK Tooling v Scope Precision Engineering 1979
9. Thoroughbred Breeders Association v Price Waterhouse Cooper 2001
10. Paulsen v Slip Knot Investments 2015
11. Tuckers Land v Hovis 1980
12. SAFCOL v York Timbers 2005
13. Stocks & Stocks v TJ Daly 1979
14. Wilkens v Voges 1994
15. Mercurius Motors v Lopez 2008
16. Freddy Hirsch Group v Chickenland 2011
17. Beadica v Trustees 2020
18. Johnston v Leal 1980
19. Lagoon Investments Capitec Bank Holdings Ltd v Coral Lagoon Investments
2022 (Prof said we will not be asked this case)
Postivie Malperformance
Sweet v Ragerguhara
1978
Relevant for: positive malperformance and mora debitoris
Facts
- Sweet bought a property from Ragerguhara.
- The contract of sale stipulated that "vacant occupation" of the property will be given by a
certain date
- When this date arrived, two families were still unlawfully residing on the property.
- Sweet then sent a letter cancelling the contract
Distribution of this document is illegal
, Kaya Borkowski
- Ragerguhara denied that Sweet had the right to cancel the contract
- Sweet then sent Ragerguhara a notice of rescission, which Ragerguhara denied was
valid
Issue
- What is the effect of the notice of rescission?
- What type of breach was it?
Outcome
- The breach is positive malperformance
- insufficient evidence had been led by both of the parties to enable the court to decide
whether Ragerguhara's breach was a material breach
- the notice of recission was not legally valid because this was clearly a case of defective
performance (and not mora) and as such, the letter of rescission could not have been
necessary, and second, it was probably not clear and unequivocal, as in the letter Sweet
stated that the contract had been cancelled anyway
- 'a notice of rescission is of no legal consequence unless it relates to the failure to
perform a "vital" or "important" term of a contract timeously'
- defective performance (positive malperformance) is 'timeous performance not in
accordance with the terms of the agreement’
- In the case of a debtor performing defectively, the creditor has a right to cancel
immediately, providing the defective performance is with regard to a material term of the
contract
- If, however, the defective performance is not materially defective, no right to cancel
exists
- When is a letter of recission valid? When it is clear and unequivocal. In other words, it
must clearlyindicate to the debtor that the creditor is still willing to honour the contract if
the debtor does
Singh v McCarthy Retail Ltd
2000
Facts
- The parties signed a written contract for the appellant to purchase a specific Mercedes
model from the respondent. The seller conducted business in Pinetown.
- As the seller did not have the necessary vehicle in stock, they agreed to purchase it from
a dealer in King William's Town and deliver it to the buyer in Durban at the seller's
expense.
- Delivery was timely and the appellant fulfilled their commitment.
Distribution of this document is illegal
Contract Law
Semester 2 Cases
1. Sweet v Ragerguhara 1978
2. Singh v McCarthy Retail Ltd 2000
3. Datacolor International v Intamarket 2001
4. Culverwell v Brown 1990
5. Benson v SA Mutual Life Assurance Society 1986
6. ISEP Structural Engineering v Inland Exploration 1981
7. Basson v Hanna 2017
8. BK Tooling v Scope Precision Engineering 1979
9. Thoroughbred Breeders Association v Price Waterhouse Cooper 2001
10. Paulsen v Slip Knot Investments 2015
11. Tuckers Land v Hovis 1980
12. SAFCOL v York Timbers 2005
13. Stocks & Stocks v TJ Daly 1979
14. Wilkens v Voges 1994
15. Mercurius Motors v Lopez 2008
16. Freddy Hirsch Group v Chickenland 2011
17. Beadica v Trustees 2020
18. Johnston v Leal 1980
19. Lagoon Investments Capitec Bank Holdings Ltd v Coral Lagoon Investments
2022 (Prof said we will not be asked this case)
Postivie Malperformance
Sweet v Ragerguhara
1978
Relevant for: positive malperformance and mora debitoris
Facts
- Sweet bought a property from Ragerguhara.
- The contract of sale stipulated that "vacant occupation" of the property will be given by a
certain date
- When this date arrived, two families were still unlawfully residing on the property.
- Sweet then sent a letter cancelling the contract
Distribution of this document is illegal
, Kaya Borkowski
- Ragerguhara denied that Sweet had the right to cancel the contract
- Sweet then sent Ragerguhara a notice of rescission, which Ragerguhara denied was
valid
Issue
- What is the effect of the notice of rescission?
- What type of breach was it?
Outcome
- The breach is positive malperformance
- insufficient evidence had been led by both of the parties to enable the court to decide
whether Ragerguhara's breach was a material breach
- the notice of recission was not legally valid because this was clearly a case of defective
performance (and not mora) and as such, the letter of rescission could not have been
necessary, and second, it was probably not clear and unequivocal, as in the letter Sweet
stated that the contract had been cancelled anyway
- 'a notice of rescission is of no legal consequence unless it relates to the failure to
perform a "vital" or "important" term of a contract timeously'
- defective performance (positive malperformance) is 'timeous performance not in
accordance with the terms of the agreement’
- In the case of a debtor performing defectively, the creditor has a right to cancel
immediately, providing the defective performance is with regard to a material term of the
contract
- If, however, the defective performance is not materially defective, no right to cancel
exists
- When is a letter of recission valid? When it is clear and unequivocal. In other words, it
must clearlyindicate to the debtor that the creditor is still willing to honour the contract if
the debtor does
Singh v McCarthy Retail Ltd
2000
Facts
- The parties signed a written contract for the appellant to purchase a specific Mercedes
model from the respondent. The seller conducted business in Pinetown.
- As the seller did not have the necessary vehicle in stock, they agreed to purchase it from
a dealer in King William's Town and deliver it to the buyer in Durban at the seller's
expense.
- Delivery was timely and the appellant fulfilled their commitment.
Distribution of this document is illegal
