Contents
Introduction ........................................................................................................................... 2
Contract of Sale ..................................................................................................................... 4
Contract of lease ................................................................................................................. 48
Suretyship ........................................................................................................................... 84
,Private Law 411: Specific Contracts
Introduction
1 Why rules relating to specific contracts
• General principles insufficient
o Sometimes reason to deviate
▪ policy reasons necessitate it, e.g. the risk rule
▪ general principles do not cater for the circumstances of the specific
contract
o Sometimes silent
o Specific legislation – that regulates the contract
▪ E.g. lease – there is a specific act, the Residential Housing Act, that
applies
2 Methodology of classification
• 2 broad approaches
(a) Essentialia-naturalia model
= characteristic rights and duties that distinguish one type of contract from another e.g.
contract of sale, parties agreed on the merx and the price
If there is no agreement on the subject matter of sale and the price, it cannot be a ctc of
sale
Whether it can be a different contract is another issue
Is it obligatory for parties to agree on more than the subject matter and the price? It is
not necessary, the law will step in and read in automatically certain unspoken terms to
govern the consequences of a ctc of sale – ex lege terms, does not depend on the
parties’ actual or deemed consensus
e.g. in ctc of sale, ex lege term that the seller will be liable if the merx is defective in
some circumstances
is also an automatic term of the ctc if sale if the seller warrants that the buyer will have
undisturbed protection i.e. no one can interfere with the buyer’s possession
parties can exclude or vary these naturalia, with their own contractual terms called
incidentalia
this model is one way of classifying ctcs, you see if these are present and then the law
will read in ex lege terms for the parties – easy model to apply
• Shortcomings – it is an all-or-nothing/black and white approach
- Even if that was in fact the purpose of the parties agreement, if you do not have
those essentialia, then it is not a ctc of sale
o Hides need for differentiation/sub-types
▪ E.g. doesn’t cater for mixed ctcs = those that combine the essentialia of 2
different types of ctcs, which in turn can lead to harsh results of which am
example is Afrox v Strydom
▪ Afrox = S had a medical procedure in hospital, had to sign a document
that exempted staff from medical negligence, ito the post op care or lack
, thereof, a nurse tied bandage too tightly and then the limb had to be
amputated because of her negligence
▪ S wanted to claim negligence, hospital relied on the exemption clause, S
argued to show that the exemption clause was void, one of which was
that the clause was void ito the iustus error approach
▪ Iustus error = material mistake which excludes consensus which is
reasonable – S argued that the exemption clause for the provision of
medical services was surprising and unexpected, hence material, and
because it was a surprising term, it should have been pointed out to him,
failure to do so was a misrepresentation which rendered his mistake
reasonable
▪ Court concluded: dealing with a ctc for the provision of medical services,
and exemption clauses of this kind are not surprising in ctcs with
independent contractors
▪ Are we dealing with an ordinary generic ctc with an independent
contractor? That is, would it be similar to a ctc concluded with a building
contractor? No, so what does that mean?
• Not just the provision of services, it is the provision of medical
services, there is an expectation that you will deliver a
professional service, not a ctc where can do whatever you want to,
a certain degree of care is expected
• If have an exemption clause exempting a hospital from liability,
this is unexpected
▪ Here, the sub-type of ctc is the provision of a medical service, thus it is
clunky and this model does not cater for it, it leaves no room for subtlety
▪ Note: turns out that majority of medical hospitals do not have these types
of clauses
o Sometimes not enough e.g. employment contract and independent contractor
▪ Labour law: different rules apply to the two, so this model does not help
to differentiate between the two, as both have in common that they are for
the provision of services, but does not distinguish whether it is an
employee or an independent contractor
• You look at factors such as level of control, whose tools do they
use etc.
(b) Typological approach
- Recognises that analysis in terms of “concepts” valuable, but insufficient
o i.e. contract of sale or lease, which a closed criteria – is recognised, but also
recognises the shortcomings of this type of conceptual approach
- therefore “types”: not all or nothing criteria
o defines it according to a long list of criteria, not all has to be present for it to
be put under a type
o e.g. recognises that a sale is a type that can exhibit/show some factors but
not others
o it is based on a dominant impression of the fact, does it look like a contract
of sale
, - e.g. employment contract/independent contractor: essentialia the same, look at
other factors
o look at a long list of factors, not all of which has to be present
- a good example of this approach being used in practice is Santos v Igesund
o football coach who committed breach of ctc, can the football club claim
specific performance (forced labour?)
o court observed that even though concluded a ctc of employment, I was
setting the parameters of his own performance, making it closer to a
contract with an independent contractor, which made the order not
problematic
o judge Foxcroft considered other factors other than a black and white reading
of the essentialia like in Afrox
o note I committed cynical breach (got a better offer elsewhere), not hardship
breach
- more difficult to apply? Yes, but it forces you to be aware of the fact that not all
contracts are the same, must take a nuanced approach to come to a fair decision
3 Sources
• Common law
• A lot of our rules come from Roman law and is still applied today, which shows it
was very practical
• As informed by:
• Legislation:
• Formalities
• Rental Housing Act 50 of 1999 – important from a doctrinal perspective
• Formalities in respect of Leases of Land Act 18 of 1969
• Consumer Protection Act 68 of 2008 – most encompassing one of them all
• Constitution – super framework under which common law and statute resides
Note: Read Janse van Rensburg v Grieve Trust for tomorrow
- Presumption in our law is that a trade in transaction, as in for a car, is deemed to be
a contract of sale
- Here, the traded in vehicle was defective, buyer traded in a defective vehicle
- Legal question: can the seller have an aedilitian remedy to compensate that seller
for the fact that a defective car wad traded in
- Traditionally, aediilitain remedy is available to the buyer where the seller has
delivered a defective merx
- Here, does a seller have a remedy against at buyer who delivers defective merx
Contract of Sale
1. Nature and conclusion
1.1 Definition
• Agreement that seller will deliver an object (ie merx) and permanently transfer all his
rights therein in return for payment of purchase price by buyer
Introduction ........................................................................................................................... 2
Contract of Sale ..................................................................................................................... 4
Contract of lease ................................................................................................................. 48
Suretyship ........................................................................................................................... 84
,Private Law 411: Specific Contracts
Introduction
1 Why rules relating to specific contracts
• General principles insufficient
o Sometimes reason to deviate
▪ policy reasons necessitate it, e.g. the risk rule
▪ general principles do not cater for the circumstances of the specific
contract
o Sometimes silent
o Specific legislation – that regulates the contract
▪ E.g. lease – there is a specific act, the Residential Housing Act, that
applies
2 Methodology of classification
• 2 broad approaches
(a) Essentialia-naturalia model
= characteristic rights and duties that distinguish one type of contract from another e.g.
contract of sale, parties agreed on the merx and the price
If there is no agreement on the subject matter of sale and the price, it cannot be a ctc of
sale
Whether it can be a different contract is another issue
Is it obligatory for parties to agree on more than the subject matter and the price? It is
not necessary, the law will step in and read in automatically certain unspoken terms to
govern the consequences of a ctc of sale – ex lege terms, does not depend on the
parties’ actual or deemed consensus
e.g. in ctc of sale, ex lege term that the seller will be liable if the merx is defective in
some circumstances
is also an automatic term of the ctc if sale if the seller warrants that the buyer will have
undisturbed protection i.e. no one can interfere with the buyer’s possession
parties can exclude or vary these naturalia, with their own contractual terms called
incidentalia
this model is one way of classifying ctcs, you see if these are present and then the law
will read in ex lege terms for the parties – easy model to apply
• Shortcomings – it is an all-or-nothing/black and white approach
- Even if that was in fact the purpose of the parties agreement, if you do not have
those essentialia, then it is not a ctc of sale
o Hides need for differentiation/sub-types
▪ E.g. doesn’t cater for mixed ctcs = those that combine the essentialia of 2
different types of ctcs, which in turn can lead to harsh results of which am
example is Afrox v Strydom
▪ Afrox = S had a medical procedure in hospital, had to sign a document
that exempted staff from medical negligence, ito the post op care or lack
, thereof, a nurse tied bandage too tightly and then the limb had to be
amputated because of her negligence
▪ S wanted to claim negligence, hospital relied on the exemption clause, S
argued to show that the exemption clause was void, one of which was
that the clause was void ito the iustus error approach
▪ Iustus error = material mistake which excludes consensus which is
reasonable – S argued that the exemption clause for the provision of
medical services was surprising and unexpected, hence material, and
because it was a surprising term, it should have been pointed out to him,
failure to do so was a misrepresentation which rendered his mistake
reasonable
▪ Court concluded: dealing with a ctc for the provision of medical services,
and exemption clauses of this kind are not surprising in ctcs with
independent contractors
▪ Are we dealing with an ordinary generic ctc with an independent
contractor? That is, would it be similar to a ctc concluded with a building
contractor? No, so what does that mean?
• Not just the provision of services, it is the provision of medical
services, there is an expectation that you will deliver a
professional service, not a ctc where can do whatever you want to,
a certain degree of care is expected
• If have an exemption clause exempting a hospital from liability,
this is unexpected
▪ Here, the sub-type of ctc is the provision of a medical service, thus it is
clunky and this model does not cater for it, it leaves no room for subtlety
▪ Note: turns out that majority of medical hospitals do not have these types
of clauses
o Sometimes not enough e.g. employment contract and independent contractor
▪ Labour law: different rules apply to the two, so this model does not help
to differentiate between the two, as both have in common that they are for
the provision of services, but does not distinguish whether it is an
employee or an independent contractor
• You look at factors such as level of control, whose tools do they
use etc.
(b) Typological approach
- Recognises that analysis in terms of “concepts” valuable, but insufficient
o i.e. contract of sale or lease, which a closed criteria – is recognised, but also
recognises the shortcomings of this type of conceptual approach
- therefore “types”: not all or nothing criteria
o defines it according to a long list of criteria, not all has to be present for it to
be put under a type
o e.g. recognises that a sale is a type that can exhibit/show some factors but
not others
o it is based on a dominant impression of the fact, does it look like a contract
of sale
, - e.g. employment contract/independent contractor: essentialia the same, look at
other factors
o look at a long list of factors, not all of which has to be present
- a good example of this approach being used in practice is Santos v Igesund
o football coach who committed breach of ctc, can the football club claim
specific performance (forced labour?)
o court observed that even though concluded a ctc of employment, I was
setting the parameters of his own performance, making it closer to a
contract with an independent contractor, which made the order not
problematic
o judge Foxcroft considered other factors other than a black and white reading
of the essentialia like in Afrox
o note I committed cynical breach (got a better offer elsewhere), not hardship
breach
- more difficult to apply? Yes, but it forces you to be aware of the fact that not all
contracts are the same, must take a nuanced approach to come to a fair decision
3 Sources
• Common law
• A lot of our rules come from Roman law and is still applied today, which shows it
was very practical
• As informed by:
• Legislation:
• Formalities
• Rental Housing Act 50 of 1999 – important from a doctrinal perspective
• Formalities in respect of Leases of Land Act 18 of 1969
• Consumer Protection Act 68 of 2008 – most encompassing one of them all
• Constitution – super framework under which common law and statute resides
Note: Read Janse van Rensburg v Grieve Trust for tomorrow
- Presumption in our law is that a trade in transaction, as in for a car, is deemed to be
a contract of sale
- Here, the traded in vehicle was defective, buyer traded in a defective vehicle
- Legal question: can the seller have an aedilitian remedy to compensate that seller
for the fact that a defective car wad traded in
- Traditionally, aediilitain remedy is available to the buyer where the seller has
delivered a defective merx
- Here, does a seller have a remedy against at buyer who delivers defective merx
Contract of Sale
1. Nature and conclusion
1.1 Definition
• Agreement that seller will deliver an object (ie merx) and permanently transfer all his
rights therein in return for payment of purchase price by buyer
