Basic concepts of contract law by Derek Hendrikz. Covers characteristics, rights, obligations, delict, proof, consensus, capacity, formalities, legality, certainty, reciprocity. www.derekhendrikz.com

1. Concepts of Contract Law
derek hendrikz

2. Copyright © 2014
Derek Hendrikz Consulting
www.derekhendrikz.com

3. a contract is…
…an agreement entered into by two
or more persons with the intention
of creating a legal obligation(s).
www.derekhendrikz.com

4. • Consensus – parties’ minds, material terms;
• Capacity of parties;
• Formalities (usually in writing and signed);
• Legality – statute, common law;
• Possibility – at the time (Force Majeure clause); and
• Certainty – agreement must have a definite and
determinable content; obligations must be clear for
enforcement.
www.derekhendrikz.com

5. characteristics
of a
contract
www.derekhendrikz.com

6. Juristic act – the law attaches the consequences intended by
the parties (like a will, unlike a delict)
www.derekhendrikz.com

7. Bilateral/multilateral conclusion – SA law does not recognise
a unilateral promise (pollicitation)
www.derekhendrikz.com

8. Has an undertaking that a situation exists; a warranty
www.derekhendrikz.com

9. Reciprocity involved – performances promised
www.derekhendrikz.com

10. Parties can agree to anything that is lawful and possible -
freedom of contract
www.derekhendrikz.com

11. Contracts are consensual
www.derekhendrikz.com

12. Contracts are bonae fidei – parties are required to conduct
their contractual relationship consistent with good faith
www.derekhendrikz.com

13. • A legal bond;
• between 2 or more parties;
• obliging the debtor to:
• give;
• do;
• refrain from doing;
• to the creditor.
• = Right to demand / duty to perform.
www.derekhendrikz.com

14. • Delict: wrongful and blameworthy action causing harm to
another:
• Wrongdoer must compensate the injured party.
• Same action might constitute a delict and a breach of contract
(medical negligence):
• Concurrent liability – plaintiff may sue on either basis.
• Courts reluctant to permit claims in delict for economic loss
caused by breach of contract (production machine, etc)
www.derekhendrikz.com

15. • Onus lies with the party who alleges;
• Onus discharged if consensus is proved by evidence
OR:
• the reasonable reliance on consensus:
• signature of the party – prima facie evidence.
• Onus then shifts to the other party.
www.derekhendrikz.com