2025

CONTRACTS
LAWS3044A
1. GENERAL INFORMATION
Please consult the SOL General Ulwazi site for general information on courses and procedures in the School of Law.
The policies and procedure to apply for a deferred exam, to institute grievance procedures are set out on the SOL
General Ulwazi site.

Please also consult the relevant Semester planner for further policies and procedures.

2. INTRODUCTION
WELCOME TO THE COURSE!

A very warm welcome to Contracts (LAWS3044A and LAWS2015A)!

You should take the time to work through this document carefully as it contains important information that is needed
to master the material and successfully complete this course.
The importance of this course cannot be stressed enough. After all, contract law is a critical component of the LLB
degree as it feeds into other commercial law courses that a student will take in their studies. Contract law is also
crucial to the practice of law, as it constitutes the basic means by which voluntary transactions (usually commercial
in nature) are regulated. Contracts are also quite personal in nature as most people (including you) enter into
contracts almost every day (think about buying cooldrink at the store or buying airtime or even buying a textbook).
Another example is that you, as a student studying at Wits, have already entered to a contract with the university.
As such, the principles you will be studying in this course forms a foundational cornerstone for both personal and
commercial activities.
Regardless of where you end up working after your studies have been completed, contracts are an integral part of
every person’s life. For this reason, contract law is both of an academic and practical importance. It would be to your
advantage not to simply to approach this course with the aim of “passing”, but to master the material you have been
exposed to in this course so that you can use them in real-life scenarios in the future.

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 AIMS AND LEARNING OUTCOMES OF LAW OF CONTRACT

Contracts (LAWS3044A) is presented at a NQF 7 with 36 NQF credits. At this level of study focus shifts from theory-
based questions (just knowing the work) to placing a greater focus on analysing, evaluating and problem-solving
skills. You are expected to know and understand the work (and thereby be able to answer theory-based questions),
but you are also required to answer application and problem-based questions (and thereby develop your critical
reasoning and problem-solving skills). Against this background, it should be stressed that this course is a designated
skills course which focuses on developing your legal reasoning, analytical and problem-solving skills.
You are expected to communicate effectively and accurately. This is achieved by knowing and understanding legal
principles and theory that underpins contracts, as well as applying such principles and theory to practical factual
problem, with the intention of solving such problems through critical reasoning and problem-solving skills.
This course covers the nature and basis of contractual liability in South Africa. It has three major themes namely the:
• Theme 1: Formation (or conclusion) of a valid contract.
• Theme 2: Contents of a contract.
• Theme 3: Breach of the terms of a contract and the remedies for breach.

THE AIMS OF THE LAW OF CONTRACT COURSE ARE:

The aim of this course is to stimulate students’ interest in the field of contract law. Students will engage actively with
the material (as set out in the prescribed textbook) to acquire a proper knowledge and understanding of basic
contractual principles (under the themes set out in the above section). In doing so, the course intends to develop legal
reasoning, critical thinking and problem-solving skills in approaching contracts.

THE LEARNING OUTCOMES OF THE LAW OF CONTRACT COURSE:

The law of contract requires far more than mere rote learning of contractual principles or cases. As you will see, contract
law is both a theoretical and a practical subject. As such, you need to practice your ability to apply contractual principles.
The ability to reason using the rules of contract law is a high-level skill which you will cultivate in this course.
By the end of this course, you must be able to:
• Read, analyse and summarise cases, legislation and academic journals effectively.
• Identify the relevant legal issues in problem-solving contexts.
• Illustrate your knowledge of the applicable legal rules and cases by applying them correctly to new problem-type
scenarios.
• Argue logically and coherently i.e. you must be able to present a well-structured and careful reasoned argument
in clear and understandable language.

3. CONTACT DETAILS
COURSE COORDINATOR AND LECTURERS

NAME OF COURSE COORDINATOR

Prof Michele van Eck

Email: [email protected]

SEMESTER 1 SEMESTER 2
NAME OF LECTURER NAME OF LECTURER

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 Group 1 Group 1
Lecturer: Prof Michele van Eck Lecturer: Prof Michele van Eck
Email: [email protected] Email: [email protected]

Group 2 Group 2
Lecturer: Ms Asma Khalifa Lecturer: Prof Peter Jordi
Email: [email protected] Email: [email protected]

Group 3 Group 3
Lecturer: Dr Nicolene Steyn Lecturer: TBC
Email: [email protected] Email: TBC

Consultation times with lecturers by appointment or at times as communicated on Ulwazi.

TEACHING ASSISTANTS AND TUTORS

Details regarding the teaching assistants and tutors will be communicated on Ulwazi.

COURSE ADMINISTRATOR

NAME OF COURSE ADMINISTRATOR

Ms Veronica Setlhabi
Email: [email protected]
Office: LB 13

4. CONTACT & STUDY TIME

LECTURE MODALITY

4.1 FACE-TO-FACE PHYSICAL LECTURES:

You are expected to attend face-to-face lectures, as determined by the course coordinator, in a designated lecture
venue. The details of which group you will form part of will be communicated via the learning management system
called “Ulwazi”.
You should stay in your designated groups. The details of the face-to-face lecture times and venues are set out below:
Day Time Venue
Monday Group 1: 10h15 – 12h00 FNB5
Group 2: 10h15 – 12h00 FNB33
Group 3: 10h15 – 12h00 WSS5
Wednesday Group 1: 14h15 – 16h00 FNB47
Group 2: 14h15 – 16h00 FNB5
Group 3: 14h15 – 16h00 FNB33
During class, you will be expected to participate and contribute to class discussions. It is especially important that
you adequately prepare for lectures by reading through the prescribed material beforehand.
4.2 “ONLINE” SESSIONS:
From time-to-time, where necessary and at the course coordinator’s discretion and online session may be arranged.
In this instance, a Zoom or MS Teams meeting link will be sent out via the Ulwazi announcements tab. Students will
sign on to “attend” the session and will be able to “raise their hand” to participate in the session.

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4.3 TUTORIALS
There will several tutorial sessions conducted during this course. These tutorials may be arranged as a face-to-face
or online tutorial session, which will be determined by the course coordinator and will be communicated via the
Ulwazi announcements tab.
Tutorials are an integral part of this course. They allow students to engage with the material in more depth to further
develop their problem-solving skills in relation to contract law. Some of the longer and more complex exercises in
the prescribed textbook will be designated as tutorial questions to be discussed in smaller tutorial groups.
All students will be required to sign up for a tutorial group on Ulwazi. The tutorial groups and tutors list with the
scheduled times, and venues will be posted on Ulwazi. Students must attend their discussion groups for all tutorials.
For each tutorial, all students must complete and submit their own written answers via Ulwazi by 07h00 am on the
day of their scheduled tutorial. No late submissions will be accepted under any circumstances. These answers must
be substantial (between one and two A4 pages long), and the student’s name and student number must appear on
every page. Students must bring their written answers to the class. Tutors will be checking that students have
prepared such written answers.
Lecturers and/or the appointed tutors may lead tutorials. Students are expected to participate in and contribute to
the discussion of prepared tutorial exercises. Attendance at tutorials will be monitored. Please check Ulwazi for
details of tutorial slots and venues.
If students experience problems with tutors, they should approach the course coordinator.

SUB-MINIMUM ATTENDANCE REQUIREMENT

A sub-minimum attendance requirement is applicable to this course. This means you will not be allowed to write
the final exam or submit the final assessment if a student attends less than:
1. 80% of all lectures; and/or
2. 80% of all tutorials.
You are expected to act honestly in completing and signing the attendance register or when signing in
electronically. Honesty and integrity are expected when completing the attendance registers. If there is any
dishonesty found in the completion of registers in whatever format then, subject to the university’s policies and
procedures, such dishonest conduct may lead to disciplinary action.

4.4 PREPARATION AND STUDY TIME

Independent reading, analysis and research are crucial skills for a legal professional. You are expected to proactively
engage with the course material. It is not enough for this course to know the legal principles and cases. In order to
pass, you have to understand how to use them to solve a legal problem. For this reason, this course is designed to
foster greater interaction with and participation by students in the classroom and with each other. It also promotes
students’ critical thinking and legal reasoning skills. For your success, you must come to lectures well-prepared and
participate in class discussions.
You cannot pass tests and exams if you only start studying close to the given assessment dates. It is essential that
you revise work already covered regularly throughout the course.
Independent and pro-active engagement with the course material, includes:
4.4.1 Preparing for lectures
You are expected to prepare for each lecture in advance. The content to be prepared for a particular topic
is set out in detail in section 7 of below.
4.4.2 Textbook and exercises
The prescribed textbook plays a pivotal role in this course. It forms the basis of your preparation and lectures
on a particular topic. Apart from a discussion of relevant principles, it includes case discussions as well as

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 exercises. These exercises will help you to test your own understanding of the work. You must prepare
written answers to these exercises as part of your preparation and bring them to class.
4.4.3 Cases
Some cases are summarised in the textbook, while others are “prescribed”. The prescribed cases that are
listed in this section 7 (below) and should be studied in detail. If a case is prescribed then you must find,
read and summarise such a prescribed case independently. Take note, as part of developing your skills you
will be expected to independently source prescribed cases via the library (this is to develop your legal
research skills).
All other cases that have not been prescribed but are nevertheless mentioned in the textbook provide
important legal principles. The legal principles of all other cases set out in the textbook should still be
studied.
4.4.4 Journal articles
There are several journal articles that are prescribed in section 7 (below). These journal articles supplement
the material in the textbook and must be studied. You must find and summarise them independently. Take
note, as part of developing your skills you will be expected to independently source the journal articles via
the library (this is to develop your legal research skills).
4.4.5 Additional reading
Additional reading has been included in section 7 (below). These additional reading sources are optional
and have been provided to help in your understanding of certain aspects of the course material. You do not
need to study these additional reading sources, but it is strongly recommended that you should read
through the additional reading at least once. This will be to your benefit in mastering the content of this
course. You must find and read such additional reading material independently.
4.4.6 Additional study materials
Additional study materials (overheads, handouts, guidelines, mind maps etc.) may be delivered via Ulwazi.
If materials have been posted before the lecture on a particular topic, it forms part of your preparation.
Some materials may be posted after the lectures on a particular topic. For this reason, you should consult
Ulwazi regularly.

Four top tips to keep in mind as part of your preparation

1. Read and make summaries of the relevant section of the prescribed textbook and additional study
materials. This includes completing written answers to all the exercises and make written
summaries of the prescribed cases and journal articles.
2. Attend all lectures and tutorials (see the attendance requirement above) and participate in the
class discussion.
3. Prepare written answers to tutorials and submit them on Ulwazi before the due date, and attend
and participate in tutorials in the designated weeks.
4. Revise the work already completed regularly throughout the course.

5. STUDY MATERIAL: PRESCRIBED BOOKS & COURSE MATERIAL

PRESCRIBED MATERIAL

All prescribed work must be studied for all assessments. You cannot pass the course without having studied the
prescribed material.
The prescribed textbook is:
• Bhana, Bonthuys & Nortje Student’s Guide to the Law of Contract 5ed (2022) Juta & Co Ltd.

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It is essential to ensure that you have regular access to the textbook for preparation, class discussion, and studying
for tests and exams. It is recommended that you acquire your own copy, as only a limited number of electronic copies
are available via the Library website, and they are likely to be in high demand, especially close to tests and exams.
TUTORIAL MATERIAL

Tutorial material will be posted on Ulwazi.

RECOMMENDED MATERIAL

Recommended readings are in addition to prescribed readings and will assist you in understanding the work:

• Hutchison (ed), Pretorius (ed), Du Plessis, Eiselen, Floyd, Hawthorne, Kuschke, Maxwell, Naude & De Stadler
The Law of Contract in South Africa 4ed (2022) Oxford University Press, Southern Africa;

• Van Huyssteen, Lubbe, Reinecke & Du Plessis Contract General Principles 6ed (2020) Juta & Co Ltd; and

• Christie & Bradfield Christie’s The law of contract in South Africa 8ed (2022) LexisNexis.

6. ASSESSMENT AND MARK CONTRIBUTIONS

6.1 SUMMARY OF ASSESSMENTS
SUMMARY OF ASSESSMENTS

Assessment Description Date Weighting:

Contribution to final
mark (%)
4 Online Quizzes There will be 4 Online See section below 6%
Semester 1
Quizzes. Only the top 2 “Online Quizzes”
Online Quiz marks will
count towards your final
mark for Semester 1.
Hence, there will not be
deferred assessment
opportunities for the
Online Quizzes. Each
Online Quiz will
contribute 3% to the
weighting of the Online
Quizzes.
Tutorials There are 4 Tutorials for See section below 4%
the semester. This “Tutorials”
assessment requires your
tutorial participation of 2
Tutorials, which requires
that:
1. You must attend the
tutorial, AND
2. You must submit your
written tutorial
answer via Ulwazi by
07h00 AM on the day
of your scheduled
tutorial. Your

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 answers must be
substantial (between
one and two A4 pages
long) and include
your full name and
student on every
page.
The mark you earned for
your participation of the
two tutorials will
contribute 2% each to
the weighting of the
Tutorials.
Test 1 This will be a proctored 9 April 2025 * 15%
in-person (sit-down)
assessment
Test 2 This will be a proctored June 2025 exam 15%
in-person (sit-down) session
assessment
4 Online Quizzes There will be 4 Online See section below 6%
Semester 2
Quizzes. Only the top 2 “Online Quizzes”
Online Quiz marks will
count towards your final
mark for Semester 1.
Hence, there will not be
deferred assessment
opportunities for the
Online Quizzes. Each
Online Quiz will
contribute 3% to the
weighting of the Online
Quizzes.
Tutorials There are 4 Tutorials for See section below 4%
the semester. This “Tutorials”
assessment requires your
tutorial participation of 2
Tutorials, which requires
that:
1. You must attend the
tutorial, AND
2. You must submit your
written tutorial
answer via Ulwazi by
07h00 AM on the day
of your scheduled
tutorial. Your
answers must be
substantial (between
one and two A4 pages
long) and include
your full name and
student on every
page.

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 The mark you earned for
your participation of the
two tutorials will
contribute 2% each to the
weighting of the
Tutorials.
Test 3 This will be a proctored 1 September 2025* 15%
in-person (sit-down)
assessment
Exam November exam November 2025 exam 35%
session
100%
FINAL MARK TOTAL: 100%
* All test dates are subject to venue availability. Any changes to test dates will be published on Ulwazi.

Please note: there is no sub-minimum mark for this course, however, there is a sub-minimum attendance
requirement (see above).

DEFERRED ASSESSMENTS
SAVE FOR PERIODS OF EXCEPTIONAL CIRCUMSTANCES SUCH AS PROLONGED HOSPITALISATION, A STUDENT MAY BE
GRANTED A MAXIMUM OF TWO DEFERRED ASSESSMENTS PER YEAR ACROSS ALL COURSES. IF AN APPLICATION FOR A
DEFERRED IS NOT SUCCESSFUL, THE STUDENT WILL BE AWARDED A ZERO FOR THE ASSESSMENT.
PLEASE SEE THE SEMESTER PLANNER FOR POLICY DETAILS AND THE APPLICATION PROCESS.

6.2 SCOPE OF ASSESSMENTS

The scope of the test and exam will be posted on Ulwazi at least 2 weeks before the assessment is scheduled.
Do not be tempted to ‘spot’ work based on what has been asked in previous tests and exams.
Tests and exams are NOT ‘open book’ for this course. Students will NOT be permitted to have any materials when
writing a test or exam. In the context of ‘closed book’ assessments, students must neither consult any materials nor
anyone else, including other students, during the entire period for the assessment. Students who contravene this
rule will be subject to disciplinary action.
All assessment questions (including past papers) remain confidential unless officially shared by the course
coordinator on Ulwazi or published on the Wits Past Papers website. Students may not share or communicate any
assessment questions, including screenshots of questions, with other students. Students who contravene this rule
will be subject to disciplinary action.
The following factors are important to take into account when answering questions in tests and exams:
• Your ability to read and understand the question asked.
• Your ability to identify the relevant legal issues in a particular problem.
• Your knowledge of the relevant legal rules.
• Your knowledge of the relevant cases that illustrate the legal rules.
• Your ability to apply the legal rules to new problem-type questions.
• The logical argument of your answer.
• Your ability to motivate (give reasons to justify) an argument.
• A well-structured answers, including the ability to identify and exclude irrelevant details.
• Your ability to express yourself in understandable language.
• Your ability to complete answers within the allocated time.

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A marking guide for an assessment may be posted on Ulwazi. It is imperative that students first go through the
marking guide before scheduling a consultation with a lecturer. When consulting about an assessment, students
must illustrate that they have read the marking guide and compared their answers to it.

6.2 TUTORIALS
Attending tutorials, and submitting answers to the tutorial questions, are compulsory. There are eight tutorials over
the year, four per semester. Each tutorial is split over a period of time, which will be communicated on Ulwazi. The
tutorial activity requires:
1. You must attend the tutorial, AND
2. You must submit your written tutorial answer via Ulwazi by 07h00 AM on the day of your scheduled tutorial.
No late submissions will be accepted under any circumstances. Your answers must be substantial (between
one and two A4 pages long), and include your full name and student on every page.
Take note of the following:
• The mark you earned for each tutorial participation (being both the attendance and the submission of the
tutorial answer to Ulwazi) counts 2% up to a maximum of 4% for a semester for tutorial activities. This
means that you must, at the very least, complete and participate (as per above) in two tutorial activities.
• You will forfeit marks allocated for the tutorial should you be recorded as not attending the tutorial.
• The tutorial mark will be forfeited if any dishonesty is found in the completion of attendance registers.
• You will receive zero for the tutorial should you not submit your tutorial timeously or at all.
In addition to the above, see above the sub-minimum attendance requirements in relation to tutorial attendance.

6.3 ONLINE QUIZZES

There will be four online quizzes in each semester. The quizzes may consist of multiple-choice questions, multiple
answer questions, matching questions, true and false, matching, complete the blank and/or a combination of these
questions.
Each quiz counts 3% of your final mark. Only your top 2 (two) quiz marks per semester will count towards your final
mark. This means you may miss up to 2 (two) quizzes without such absence impacting your year mark. As a result,
there will not be any deferred assessment opportunities for the quizzes.
Herewith the online quiz schedule (note are any changes to test dates will be published on Ulwazi):
SEMESTER 1
Quiz Number Scope of Material Tested Open Date Close Date
1.1 Units 1-5 10 March at 08h00 14 March at 14h00
1.2 Units 6-8 11 April at 08h00 17 April at 14h00
1.3 Units 9-10 5 May at 08h00 9 May at 14h00
1.4 Units 11-12 19 May at 08h00 23 May at 14h00
SEMESTER 2
Quiz Number Scope of Material Tested Open Date Close Date
2.1 Units 13-14 4 August at 08h00 8 August at 14h00
2.2 Unit 15 18 August at 08h00 22 August at 14h00
2.3 Units 16-17 17 September at 08h00 22 September at 14h00
2.4 Units 18-19 9 October at 08h00 15 October at 14h00

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 7. STUDY THEMES & OUTCOMES
To reach the exit-level outcome, the following study themes and more specific outcomes must be
attained:
BASIC INTRODUCTION

As mentioned above, the course is presented in three themes, being:

• Theme 1: Formation (or conclusion) of a valid contract.
• Theme 2: Contents of a contract,
• Theme 3: Breach of the terms of a contract and the remedies for breach.
These three themes are divided into 20 smaller topics (or units). This is to allow to present the information in a
more structured manner. You will note that that these topics do not always follow the sequence of the textbook
and, for this reason, it is very important that you follow the structure and guidelines given in this Course
Framework.
To help you navigate the material, consider the following (full details of each unit is set out in more detail later in
the Course Framework):

Introductory Principles
Unit 1 (Introduction) Theme 1: Formation (conclusion) of a valid contract
Unit 2 (Problem-
Solving) Units 4 (Offer and Theme 2: Contents of a Contract
acceptance)
Unit 3 (Requirements Units 14 (Parties to a Theme 3: Breach
for a valid contract) Unit 5 (Pacta de
contrahendo) contract) & Termination
Unit 15 (Content of a Units 17 (Breach of a
Unit 6 (Basis for
contract)
contractual liability) Contract)
Unit 16 (Transfer of Unit 18 (Remedies to
Unit 7 (Mistake)
obligations) breach)
Unit 8 (Improperly
obtained consensus) Unit 19 (Termination
Unit 9 (Contractual and extinction of
capacity) obligations)
Unit 10 (Formalities) Unit 20
(Interpretation and
Unit 11 (Legality amd Drafting Principles)
lawfulness)
Unit 12 (Possiblity of
performance
Unit 13 (Certainty)

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Although Unit 20 may also be considered to be part of Theme 2, it has been placed under Theme 3 as many
(if not most) litigation stems from the interpretation of a contract and is appropriate to be discussed under
the principles of how a contract should be interpreted in the context of breach and remedies of a contract.

The following is an overview of the topics we will cover in this course, with an indication of the planned
time that each section will take. Note that these dates are provisional only, and individual lecturers may
deviate from them at their own discretion.

SEMESTER 1
SEMESTER 1 : FIRST TEACHING BLOCK
WEEK CLASS TOPIC
1 10 February 2025 Unit 1 (Introduction)
1 12 February 2025 Unit 1 (Introduction)
2 17 February 2025 Unit 2 (Problem- Solving)
2 19 February 2025 Unit 3 (Requirements for a valid contract) & Revision
3 24 February 2025 Unit 4 (Offer and Acceptance)
3 26 February 2025 Unit 4 (Offer and Acceptance)
4 3 March 2025 Unit 5 (Pacta de contrahendo)
4 5 March 2025 Unit 5 (Pacta de contrahendo)
5 10 March 2025 Unit 6 (Basis of contractual liability) Quiz 1.1
5 12 March 2025 Unit 7 (Mistake) (10 March – 14 March)

6 17 March 2025 Unit 7 (Mistake)

6 19 March 2025 Unit 8 (Improperly obtained consensus)
7 24 March 2025 Unit 8 (Improperly obtained consensus)
8 26 March 2025 Revision
MID-TERM BREAK (26 MARCH – 6 APRIL)
SEMESTER 1 : SECOND TEACHING BLOCK
WEEK CLASS TOPIC
1 7 April 2025 Unit 9 (Contractual capacity)
1 9 April 2025 Test 1
2 14 April 2025 Unit 10 (Formalities) Quiz 1.2
2 16 April 2025 Unit 10 (Formalities) (11 April – 17 April)

3 21 April 2025 Public Holiday (Family Day)

3 23 April 2025 Unit 11 (Legality and lawfulness)
4 28 April 2025 Public Holiday (Freedom Day)
4 30 April 2025 Unit 11 (Legality and lawfulness)
5 5 May 2024 Unit 11 (Legality and lawfulness) Quiz 1.3
5 7 May 2024 Unit 11 (Legality and lawfulness) (5 May – 9 May)

6 12 May 2024 Unit 12 (Possibility of performance)

6 14 May 2024 Unit 12 (Possibility of performance)
7 19 May 2024 Unit 13 (Certainty) Quiz 1.4
7 21 May 2024 Unit 13 (Certainty) (19 May – 23 May)

8 26 May 2024 Revision

STUDY BREAK (28 MAY – 30 MAY)
Test 2 (June Exam)

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 SEMESTER 2
SEMESTER 2 : THIRD TEACHING BLOCK
WEEK CLASS TOPIC
1 23 July 2025 Recap and Revision of Semester 1
2 28 July 2025 Unit 14 (Parties to a Contract)
2 30 July 2025 Unit 14 (Parties to a Contract)
3 4 August 2025 Unit 15 (Content of a Contract) Quiz 2.1
3 6 August 2025 Unit 15 (Content of a Contract) (4 August – 8 August)

4 11 August 2025 Unit 15 (Content of a Contract)

4 13 August 2025 Unit 15 (Content of a Contract)
5 18 August 2025 Unit 16 (Parties to a Contract) Quiz 2.2
5 20 August 2025 Unit 16 (Parties to a Contract) (18 August – 22 August)

6 25 August 2025 Unit 17 (Breach of a Contract)

6 27 August 2025 Unit 17 (Breach of a Contract)
7 1 September 2025 Test 3
7 3 September 2025 Unit 17 (Breach of a Contract)
MID-TERM BREAK (6 SEPTEMBER – 14 SEPTEMBER)
SEMESTER 2 : FOURTH TEACHING BLOCK
WEEK CLASS TOPIC
1 15 September 2025 Unit 17 (Breach of a Contract)
2 17 September 2025 Unit 18 (Remedies of Breach) Quiz 2.3
2 22 September 2025 Unit 18 (Remedies of Breach) (17 Sept – 22 Sept)

3 24 September 2025 Public Holiday (National Heritage Day)

3 29 September 2025 Unit 18 (Remedies of Breach)
4 1 October 2025 Unit 18 (Remedies of Breach)
4 6 October 2025 Unit 19 (Termination and Extinction)
5 8 October 2025 Unit 19 (Termination and Extinction)
Quiz 2.4
5 13 October 2025 Unit 20 (Interpretation and Drafting) (9 October – 15 October)
6 15 October 2025 Unit 20 (Interpretation and Drafting)
6 20 October 2025 Unit 20 (Interpretation and Drafting)
7 22 October 2025 Recap and Revision
7 27 October 2025 Recap and Revision
STUDY BREAK (29 OCTOBER – 2 NOVEMBER)
End-Year Exam

SEMESTER 1 – DETAILED BREAKDOWN

UNIT 1: INTRODUCTION TO CONTRACTS
TEXTBOOK CHAPTER 1

1.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law.

1.2 SUB-TOPIC: BASIC CONCEPTS IN CONTRACT

Under this sub-topic you should be able to:
• Differentiate between an “agreement” and a “contract”.
• Define a contract.

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 • Identify the features and characteristics of a contract.
• Explain what is meant with animus contrahendo (e.g., the serious intention to contract).
• Explain the concept of a “legal obligation” and its operation within a contract.
• Differentiate between a “right” and a “duty”.
• Explain basic introductory principles related to a “party to a contract”, “content of a contract” and
“agency”.
• Explain the different types of performances (e.g., dare, facere and non facere).
• Explain the difference between the creation of “personal rights” and “real rights” in a contract.
• Differentiate and explain “essentialia”, “naturalia” and “incidentalia”.
• Differentiate and explain “express terms”, “implied terms” and “tacit terms”.
• Distinguish between “delictual” and “contractual” damages.
• List and briefly explain the requirements for a valid contract

STUDY:
• Textbook: Chapter 1 (paragraph 1)
• Kgopana v Matlala 2019 JDR 2365 (SCA).
➔ When studying this case, focus should be placed on the manner in which the court approached
the concept of “animus (or animos) contrahendo” (the serious to contract).
➔ Take special note of the court’s conclusions in paragraphs 12-13.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING
To add to your understanding of animus contrahendo, you should also read Mtshali “Can a WhatsApp
message be held as an enforceable contract?” (2020) De Rebus https://www.derebus.org.za/can-a-
whatsapp-message-be-held-as-an-enforceable-contract/

1.3 SUB-TOPIC: CORNERSTONES OF CONTRACT LAW

Under this sub-topic you should be able to:
• Differentiate between an “freedom of contract”, “good faith”, “pacta sunt servanda” and “privity of
contract”
• Explain, through a critical evaluation of Constitutional Court cases, the application of the Constitution to
contracts (with specific reference to the indirect approach and public policy).
• Explain and critically discuss the tension between the “equity principles” and “contractual certainty” as
found in key Constitutional Court judgements.

STUDY:
• Textbook: Chapter 1 (paragraphs 1.6 and 2)
• Barkhuizen v Napier 2007 (5) SA 323 (CC)
➔ When studying this case, you should be able to provide a detailed discussion of the court’s
analysis of the different manners in which the Constitution may apply to contracts (e.g., direct
and indirect application).
➔ You should be able to explain (with reference to the relevant sections of the Constitution) the
court’s argument as to why the indirect application should apply.
➔ Consider the court’s approach to public policy in this context and specifically the public policy
test developed in this case.
• Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC)
➔ This case endorsed the principles of Barkhuizen v Napier, but expanded upon them. When
studying this case, you should be able to provide a detailed discussion of the court’s approach
to equity principles (fairness, reasonableness, good faith and ubuntu).
➔ Explain how the court’s approach to the equity principles.
• The notes you have taken during class.

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 • Any additional resources loaded onto Ulwazi.

1.4 SUB-TOPIC: OVERVIEW OF THE LAW OF CONTRACT

Under this sub-topic you will be exposed to principles to assist you with approaching problem-based questions
in the course. You should test your knowledge by working through the example question in the textbook.

READ:
• Textbook: Chapter 1 (paragraph 4)

1.5 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Agreement • Equity principles • Non facare (not to do
• Animus (or animo) (being fairness, something)
contrahendo (serious reasonableness and • Obligation
intention to contract) good faith) • Pacta sunt servanda
• Contract • Express term (sanctity of contract)
• Contractual certainty • Facere (to do • Privity of contract
• Creditor something) • Public policy
• Dare (to give • Freedom to contract • Real right
something) • Good faith • Right (e.g., a
• Debtor • Implied term contractual right)
• Duty (e.g., • Incidentalia • Vinculum iuris (legal
contractual duties) • Personal right bond/tie).
• Essentialia • Naturalia • Tacit term

UNIT 2: PROBLEM-SOLVING
TEXTBOOK CHAPTER 2

2.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:

2.2 SUB-TOPIC: THE STRUCTURE OF CONTRACT LAW

Under this sub-topic you should be able to:
• Explain the different sources of contractual obligations.
• Explain what is meant by the “common law”.
• Explain how the Constitution influences the operation of a contract (you should reference what you have
learnt in unit 1).
• Explain and apply the “planning process” for answering problem-based questions.
• Explain, by way of examples, how legislation may influence contractual principles.
• The importance and role that case law plays contracts.

STUDY:
• Textbook: Chapter 2 paragraph 1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

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2.3 SUB-TOPIC: READING CASES AND USING THEM AS AUTHORITY
Case law is important in contracts and for this reason you should have a good grasp of how to read cases and
how to use them as authority. Under this sub-topic provides you with guidance on how to approach case law.
This sub-topic serves as practical guidance.

READ:
• Textbook: Chapter 2 paragraph 2

APPLY:
Apply the principles in the textbook to the cases you have been exposed to in unit 1:
• Barkhuizen v Napier 2007 (5) SA 323 (CC)
• Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC)

2.4 SUB-TOPIC: PROBLEM-SOLVING USING THE RULES OF CONTRACT LAW

Under this sub-topic you will be exposed to principles to assist you with approaching problem-based questions
in the course. You should use these paragraphs in the textbook as a guideline to develop your practical skills.

READ:
• Textbook: Chapter 2 paragraph 3

2.5 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Alienation of Land Act 68 of 1981 • Electronic Communications and
• Common Law Transactions Act 25 of 2002
• Consumer Protection Act 68 of 2008 • National Credit Act 34 of 2005
• Conventional Penalties Act 15 of 1962

UNIT 3: REQUIREMENTS FOR A VALID CONTRACT

TEXTBOOK CHAPTER 3

3.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:

3.2 SUB-TOPIC: REQUIREMENTS FOR VALIDITY

Under this sub-topic you should be able to:
• List and briefly explain the requirements for a valid contract.
• Distinguish between a contract that is “valid”, “void”, “voidable” and “unenforceable”.

STUDY:
• Textbook: Chapter 3 paragraph 1.1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

3.3 SUB-TOPIC: CONSEQUENCES OF A CONTRACT

Under this sub-topic you should be able to:
• Explain the consequences of a contract that has fulfilled all the requirements (validity).
• Explain the consequences of a contract that has not fulfilled all the requirements (invalidity).
• Explain the consequences of a partially void contract (severability).

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 STUDY:
• Textbook: Chapter 3 paragraphs 1.2-1.5
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

3.4 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Cancellation • Damages • Specific performance
• Consensus • Possibility (of • Valid
• Contractual capacity performance) • Void (invalid)
• Certainty • Legality • Voidable
• Formalities • Severability • Unenforceable

UNIT 4: OFFER AND ACCEPTANCE

TEXTBOOK CHAPTER 3

4.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
4.2 SUB-TOPIC: RULES OF FORMATION
Under this sub-topic you should be able to:
• Explain the formation of a valid contract.
• Explain the concept of “subjective consensus”
• Explain what is meant by an “expressed (or declared) agreement”.
• Differentiate and explain the principles of “offer” and “acceptance”.
• Differentiate and explain the concepts of “offeror” and offeree”.

STUDY:
• Textbook Chapter 3 paragraph 2.1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

4.3 SUB-TOPIC: OFFER

Under this sub-topic you should be able to:
• Explain what is meant by the concept “offer”.
• List and explain each of the requirements for a valid offer.
• Explain the rules surrounding offers made to the public.
• Explain how the Consumer Protection Act 68 of 2008 impacts the common law rules related to offers.
• What is meant with the term “bait marketing” under the Consumer Protection Act 68 of 2008.
• Explain how an offer may be terminated.

WATCH:
• Watch the following video: “Superstore Pricing Mayhem” at https://youtu.be/Lg0izcEaEWw?t=18
➔ After having watched the video, consider the legal position of the store and the customers
by applying the principles of “offer”.
➔ Take special note of how the principles of “offers made to the public” would apply to the
scenario in the video.
__________________________
STUDY:

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 • Textbook Chapter 3 paragraphs 2.2
• Steyn v LSA Motors Ltd [1994] 1 All SA 483 (A)
➔ When studying this case, focus on the court’s arguments as to whom the offer was directed.
The principle established in the case is that an offer is capable of acceptance only insofar as
the offer was directed to that particular person (e.g., the offeree).
➔ Against this principle, you should be able to explain (with reference to the court’s arguments)
why Steyn was not entitled to the prize money.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

4.4 SUB-TOPIC: ACCEPTANCE

Under this sub-topic you should be able to:
• Explain what is meant by the concept “acceptance”.
• List and explain each of the requirements for an acceptance.
• Explain what is the consequences of a “counter-offer”.
• Explain the legal principles applicable to “silence” or “inaction”.
• Explain the impact of “negative option marketing” under the Consumer Protection Act 68 of 2008 to
acceptance by “silence” or “inaction”.
• Explain the legal principles applicable to “a duty to contract”.
• Explain the legal principles applicable to “tacit contracts”.

WATCH:
• Watch the following video: “The Perfect Negotiation – The Power of Hard Bargaining” at
https://youtu.be/nNZ64dDZorE?si=OX6aQjxM5jyqJ9EU
➔ Take special attention to how each party (Adam Sandler) and the girl each make various
offers. Each time a “counteroffer” is made (which means that the original offer was rejected).
➔ Take special note of how counter-offers work within the context of this video.
__________________________
STUDY:
• Textbook Chapter 3 paragraphs 2.3
• Bloom v The American Swiss Watch Company 1915 AD 100
➔ This case highlights that the offeree must have knowledge of the offer in order to accept it.
➔ When studying this case, you should focus on the reason why Bloom was not allowed to
recover the reward from the American Swiss Watch Company (e.g., what principle did the
court rely on to conclude this?).
• Gaap Point of Sale v Valjee 2011 (6) SA 601 (KZD)
➔ When studying this case, pay particular attention to the court’s approach to counter-offers.
➔ What constituted a counter-offer the circumstances of this case?
➔ Consider this case in the context of “unconditional acceptance” of an offer.
• Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd 2002 (4) SA 408 (SCA)
➔ This case revolves around whether a contract could be concluded due to a an “inaction” on
the part of the offeree. Specifically on whether related to the provision that unless terms
were rejected by the offeree in writing within a period of three days then the offeree would
be deemed to have accepted the offer.
➔ You should assess the court’s rational and position on a contract concluded upon non-
rejection of terms by the offeree.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING
To add to your understanding of options, you should also read Hutchison “Remedies for breach of an
option” (1988) South African Law Journal 547-552.

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4.5 SUB-TOPIC: TIME AND PLACE OF FORMATION OF A CONTRACT
Under this sub-topic you should be able to:
• Differentiate between the concepts of “inter absentes” and “inter praesentes”.
• Explain where (the location) and when (the time) a contract is concluded through the correct use of the
declaration, information, expedition and reception theories.

STUDY:
• Textbook Chapter 3 paragraphs 2.4
• Electronic Communications and Transactions Act 25 of 2002
➔ Section 22(1) – related to the general recognition of electronic contracts.
➔ Section 22(2) – rules of where (the location) and when (the time) of when an electronic
contract is concluded.
➔ Section 23 – rules related to the time and place of communications, dispatch and receipt.
• Cape Explosives Works Ltd v South African Oil and Fat Industries Ltd 1921 CPD 244
➔ This case focuses on where (the location) and when (the time) a contract is concluded via
post.
➔ You should focus on the principles (and application) established by the court in the use of
the expedition theory.
• Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC)
➔ This case focuses on where (the location) and when (the time) a contract is concluded
electronically (e.g., in terms of the Electronic Communications and Transactions Act 25 of
2002).
➔ You should focus on the principles (and application) established by the court in the use of
the reception theory.
➔ Take special note of which offer was accepted and the court’s comments on the “mode” of
acceptance.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING:
You should read the following article to supplement your understanding of the Jafta case and the
rules surrounding the reception theory.
• Stoop “SMS and e-mail contracts: Jafta v Ezemvelo KZN Wildlife” 2009 SA Merc LJ 110-125.

4.6 SUB-TOPIC: SUMMARY AND RECAP

Under this sub-topic you should:
• Revise the information you have learnt in the previous sub-topics.
• Supplement your notes based on your reading of the case law, legislation and journal article as well as
your class notes.

STUDY:
• Textbook Chapter 3 paragraphs 2.5
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

4.7 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Acceptance • Expressed (declared) • Inter praesentes
• Bait marketing agreement • Negative option
• Counter-offer • Expedition theory marketing
• Declaration theory • Information theory • Offer
• Inter absentes • Offeror

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 • Offeree • Reception theory • Subjective consensus

UNIT 5: PACTA DE CONTRAHENDO

TEXTBOOK CHAPTER 3

5.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
5.2 SUB-TOPIC: INTRODUCTION TO PACTA DE CONTRAHENDO
Under this sub-topic you should be able to:
• Define and briefly explain the concept “pacta de contrahendo”.
• Explain the two contracts that are involved in a pacta de contrahendo.
• Identify the two types of pacta de contrahendo recognised as valid in South Africa.

STUDY:
• Textbook Chapter 3 paragraphs 3.1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

5.3 SUB-TOPIC: OPTIONS

Under this sub-topic you should be able to:
• Explain the legal nature of an option.
• Discuss the requirements of an option.
• Discuss the duration and legal effect of an option.
• Identify and briefly discuss the remedies available in the instance of a breach of an option.

STUDY:
• Textbook Chapter 3 paragraphs 3.2
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

5.4 SUB-TOPIC: PRE-EMPTION AGREEMENTS

Under this sub-topic you should be able to:
• Explain the legal nature of a pre-emptive agreement.
• Discuss the requirements of a pre-emptive agreement.
• Discuss the legal effect of a pre-emptive agreement.
• Distinguish between a “positive duty” and a “negative duty”.
• Explain what is meant by a “trigger event”.
• Identify and briefly discuss the remedies available in the instance of a breach of a pre-emptive agreement
(right of first refusal).
• Explain the “Oryx Mechanism” and how it impacts the remedy of specific performance in relation to a
positive duty.

STUDY:
• Textbook Chapter 3 paragraphs 3.3
• Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd En Andere 1982 (3) SA
893 (A):
➔ You should only study the English headnote and your class notes for this case.
➔ Take special notice how the court’s development of the Oryx Mechanism and its application to
positive duties in a pre-emptive agreement.

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 ➔ You should consider the court’s position on the need for the Oryx Mechanism (opposed to the remedy
of specific performance) and develop your own argument as to whether the Oryx Mechanism would
be considered a form of “self-help”.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING:
To supplement your understanding of the material, you should read the following:
• Bhana "The Enforcement of Pre-Emption: A Proposed New Form of Specific Performance" (2010) Tydskrif
vir Hedendaagse Romeins-Hollandse Reg (Journal for Contemporary Roman-Dutch Law) 288-306.
• Bhana "The Contract of Pre-Emption as an Agreement to Agree" (2008) Tydskrif vir Hedendaagse Romeins-
Hollandse Reg (Journal for Contemporary Roman-Dutch Law) 568-588.

5.5 SUB-TOPIC: DIFFERENCE BETWEEN AN OPTION AND A PRE-EMPTION AGREEMENT

Under this sub-topic you should be able to:
• Explain the difference between an option and a pre-emption agreement.
• Be able to identify an option in a contract (e.g., recognise and identify the contractual clause).
• Be able to identify a pre-emption agreement (or a right of first refusal) in a contract (e.g., recognise and
identify the contractual clause).
• Explain (with reference to the previous sub-topics) the legal effect and consequences of a breach of a
option and a pre-emption agreement (right of first refusal).

STUDY:
• Textbook Chapter 3 paragraphs 3.4
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

5.6 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Pacta de contrahendo • Pre-emptive • Trigger event
• Main agreement agreement
• Option • Right of first refusal

UNIT 6: BASIS OF CONTRACTUAL LIABILITY

TEXTBOOK CHAPTER 1

6.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
6.2 SUB-TOPIC: THEORIES OF CONTRACTUAL LIABILITY
Under this sub-topic you should be able to:
• Differentiate between the “declaration theory”, “will theory” and “reliance theory”.
• Explain the Justus (iustus) error approach.
• Provide a basic explanation of consolidating the different theories of contractual liability.
• Explains the strengths and shortcomings (weaknesses) of each of these theories.

STUDY:
• Textbook: Chapter 1 (paragraph 3)
• Pretorius “The basis of contractual liability in South African law (1)” (2004) Tydskrif vir Hedendaagse
Romeins-Hollandse Reg (Journal for Contemporary Roman-Dutch Law) 179-192.

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 ➔ You should study this journal in the context of providing background to the theories of contractual
liability. You do not need to study the Roman Law or English principles in the journal.
• Pretorius “The basis of contractual liability in South African law (2)” (2004) Tydskrif vir Hedendaagse
Romeins-Hollandse Reg (Journal for Contemporary Roman-Dutch Law) 383-393.
➔ You should study this journal to supplement your understanding of the theories of contractual
liability.
• Pretorius “The basis of contractual liability in South African law (3)” (2004) Tydskrif vir Hedendaagse
Romeins-Hollandse Reg (Journal for Contemporary Roman-Dutch Law) 549-565.
➔ You should study this journal to supplement your understanding of the theories of contractual
liability.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

Take note: This unit forms the basis for unit 7 (which deals with mistake) and will be expanded upon in the unit
that follows.

6.3 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:

• Declaration theory • Justus (or iustus) • Reliance theory

• Estoppel error • Quasi mutual assent
• Will theory

UNIT 7: MISTAKE
TEXTBOOK CHAPTER 10 (AND A PORTION OF CHAPTER 6)

a. LEARNING OUTCOMES
After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
b. SUB-TOPIC: INTRODUCTORY CONCEPTS OF MISTAKE
Under this sub-topic you should be able to:
• List and briefly discuss the elements of subjective consensus.
• Identify the challenges when there is a difference between a declared intention and the subjective
consensus of a party.
• Explain how mistake may impact a contract.
• Explain the different classifications of mistake.
• Differentiate and explain a “non-causal” and “casual” mistake.
• Differentiate and explain a “essential (material)” and “non-essential (non-material)” mistake.
• Differentiate and explain the Roman classification of mistake.
• Explain the impact that each type of mistake has on a contract.
• Explain what is meant by the term “rectification”.
• Differentiate and explain a “common”, “mutual” and “unilateral” mistake.

STUDY:
• Textbook Chapter 10 paragraph 1
• Khan v Naidoo 1989 (3) SA 724 (N)
➔ At first one may be tempted to classify the type of mistake as an error in negation (which would
have resulted in an essential mistake) in this case. However, when studying this case, you should
carefully consider the court’s reasoning as to why this would rather be classified as an error in
persona (and as a result, non-essential).
• The notes you have taken during class.

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 • Any additional resources loaded onto Ulwazi.

c. SUB-TOPIC: MISTAKE IN MOTIVE

Under this sub-topic you should be able to:
• Explain the impact and consequence of a mistake in motive in a contract.
• Revisit this sub-topic and supplement it once you have studied the unit on improperly obtained consensus.

STUDY:
• Textbook Chapter 10 paragraph 2
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

d. SUB-TOPIC: GENERAL PRINCIPLES OF ESSENTIAL (MATERIAL) MISTAKE

Under this sub-topic you should be able to:
• Explain the impact and consequence of an essential (or material) mistake in a contract.

STUDY:
• Textbook Chapter 10 paragraphs 3.1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

e. SUB-TOPIC: UNILATERAL AND MUTUAL ESSENTIAL (MATERIAL) MISTAKE

Under this sub-topic you should be able to:
• Explain what is meant by the term “unilateral essential mistake”.
• Explain the concept, use and impact of the “iustus error” (also spelt justus error) in a contract.
• Explain the concept, use and impact of the reasonable reliance theory in a contract.
• Discuss the different approaches to essential (material) mistakes.
• Compare the courts approaches set out in the prescribed cases and critically analyse the correctness,
strengths and shortcomings of each of the prescribed cases.

STUDY:
• Textbook Chapter 10 paragraphs 3.2.1 – 3.2.2, and 3.3
• Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 (SCA)
➔ When studying this case, you should focus on the court’s approach in relation to escaping
contractual liability as a result of a mistake. Take particular notice of the rules established in this
case and this differs from common law principles you have learnt under this sub-topic.
• Slip Knot Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA)
➔ You should focus on the principles related to how the principles of reasonable reliance (and
escaping contractual liability) would apply in instances of third-party misrepresentation.
• Sonap Petroleum SA (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v Pappadogianis 1992 (3) SA
234 (A)
➔ You should play close attention to the court’s approach to unilateral mistakes and the exception
to the reasonable reliance test. Take particular notice of the rules surrounding the so-called
“Sonap Test” that was established in this case.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING:
In order to supplement your understanding of the material you should read: Nortje "Of Reliance, Self-
Reliance and Caveat Subscriptor" (2012) South African Law Journal 132-153.

f. SUB-TOPIC: CAVEAT SUBSCRIPTOR

Under this sub-topic you should be able to:
• Explain what is meant by the term “caveat subscriptor”.

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 • Explain the consequence of signing without reading a document.
• Identify and explain the exceptions to the caveat subscriptor principle.
• Discuss the impact of documents containing unexpected (or unusual) terms in relation to the caveat
subscriptor principle.
• Compare the outcomes of the prescribed cases and explain (with reference to legal principles) why the
courts concluded differently.

STUDY:
• Textbook Chapter 10 paragraph 3.2.3(a) – 3.2.3(b).
• George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A)
➔ Consider the situation in this case where a person did not read the hotel register but signed the
document any way.
➔ When reading this case, formulate your argument as to why justus (iustus) error was not
successful but that the principle of caveat subscriptor was confirmed.
• Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 (SCA)
➔ You have already studied this case in an earlier sub-topic, but now focus on the principles the
court established in relation to signing a document without reading it. You should be able to
compare the Brink judgement with George v Fairmead and explain why the courts concluded
differently.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING:
In order to supplement your understanding of unexpected terms, you should read: Nortje, "Unexpected
Terms and Caveat Subscriptor" (2011) South African Law Journal 741-762.

g. SUB-TOPIC: TICKET CASES

Under this sub-topic you should be able to:
• Explain what is meant by a “ticket case”.
• Explain and apply the ticket-test.

STUDY:
• Textbook Chapter 10 paragraph 3.2.3(c)
• King's Car Hire (Pty) Ltd v Wakeling [1970] 4 All SA 485 (N)
➔ You should use this case to explain the ticket-test rules and the court’s interpretation and
application of the ticket-test. Take particular notice, amongst other things, the court’s approach
to what is considered “reasonable notice”.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

h. SUB-TOPIC: RECTIFICATION
Under this sub-topic you should be able to:
• Explain what is meant by the term “rectification”.
• Explain the difference between “rectification” and “simulation”.
• Explain when a court may rectify a contract.

STUDY:
• Textbook Chapter 6 paragraph 3.4
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

i. SUB-TOPIC: CONSUMER PROTECTION ACT

Under this sub-topic you should be able to:
• Briefly explain the impact the Consumer Protection Act 68 of 2008 has on the principles in this unit.

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 STUDY:
• Textbook Chapter 10 paragraph 3.2.4
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

4.8 SUB-TOPIC: SUMMARY AND RECAP

Under this sub-topic you should:
• Revise the information you have learnt in the previous sub-topics.
• Supplement your notes based on your reading of the case law and legislation as well as your class notes.

STUDY:
• Textbook Chapter 10 paragraph 4
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

j. KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Subjective consensus • Error in qualitate • Misrepresentation
• Caveat subscriptor • Error in corpore • Mutual mistake
• Causal mistake • Error in substantia • Reasonable reliance
• Common mistake • Essential (material) theory
• Condition or mistake • Rectification
supposition • Justus error (also • Simulation
• Error in persona spelt iustus error) • Warranty
• Error in nomine • Non-causal mistake • Unilateral mistake
• Error in negatio • Non-essential (non-
• Error in corpore material) mistake

UNIT 8: IMPROPERLY OBTAINED CONSENSUS

TEXTBOOK CHAPTER 11

8.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
8.2 SUB-TOPIC: INTRODUCTORY CONCEPTS OF IMPROPERLY OBTAINED CONSENSUS
Under this sub-topic you should be able to:
• Identify the different forms of improperly obtained consensus.
• Explain the consequences and remedies available in instances of improperly obtained consensus.
• Explain the principle of restitutio in integrum (or restitution)/
• Explain why delictual damages would be applicable (opposed to contractual damages) in instances of
improperly obtained consensus.

STUDY:
• Textbook Chapter 11 paragraph 1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

8.3 SUB-TOPIC: MISREPRESENTATION

Under this sub-topic you should be able to:
• Define and explain what is a “misrepresentation”.

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 • Distinguish between “delictual damages” and “contractual damages”.
• Distinguish between pre-contractual misrepresentation and contractual misrepresentation (e.g.,
warranties).
• Explain and distinguish between “negligent”, “intentional” and “innocent” misrepresentations.
• Explain the elements (requirements) of misrepresentation.
• Explain what is meant by “misrepresentation by omission”.
• Explain “opinions/predictions” and “puffing” in the context of improperly obtained consensus.
• Explain the difference between dolus dans (fundamental misrepresentation) and dolus incidens (incidental
misrepresentation).
• Identify and explain the remedies for misrepresentation (specifically the application of the restitutio in
integrum and delictual damages).
• Identify and explain the application of the aedilitean remedies (e.g., actio redhibitoria and actio quanti
minoris)
• Explain the differences between the concepts of “mistake” and “misrepresentation”.

STUDY:
• Textbook Chapter 11 paragraph 2
• ABSA Bank Ltd v Fouche 2003 (1) SA 176 (SCA)
➔ When studying this case, take particular note of the impact of non-disclosure of information and how
this is influenced by information that is in the “exclusive knowledge” of one of the contracting parties.
• Feinstein v Niggli 1981 (2) SA 648 (A)
➔ When studying this case, consider when an opinion or forecast will be transform into a negligent
misrepresentation. Also focus on the remedies that are permitted under these circumstances.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING:
In order to assist in understanding the concepts of misrepresentation and pre-contractual disclosures, you
should read the following articles:
• Nortje "Pre-Contractual Duties Of Disclosure In The South African Common Law (Part 1)" (2015) Journal Of
South African Law 347-362.
• Nortje "Pre-Contractual Duties Of Disclosure In The South African Common Law (Part 2)" (2015) Journal Of
South African Law 567-582.

8.4 SUB-TOPIC: DURESS

Under this sub-topic you should be able to:
• Define and explain what is “duress”.
• Distinguish between “vis absoluta” and “vis compulsiva”.
• Explain and apply the elements (requirements) of duress.
• Explain the remedies available in instances of duress.
• Explain what is meant by “economic duress” and whether it is recognised in South Africa.
• To critically assess case law and prescribed journals to distinguish between “duress”, “economic duress”
and “undue influence”.

STUDY:
• Textbook Chapter 11 paragraph 3
• Glover "The Test for Duress in the South African Law of Contract" (2006) South African Law Journal 98-
125.
➔ The journal author provides overview of the principles and requirements of duress in South Africa.
You should use this article to supplement your understanding and the discussion of duress of the
textbook.
• Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) 339 (SCA)

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 ➔ Focus on the court’s discussion regarding economic duress and whether it is reconised within South
Africa. You should be able discuss how the court applied the principle of duress in these
circumstances.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

8.5 SUB-TOPIC: UNDUE INFLUENCE

Under this sub-topic you should be able to:
• Define and explain what is “undue influence”.
• Explain and apply the elements (requirements) of undue influence.
• Explain the remedies available in instances of undue influence.
• To critically assess case law and prescribed journals to distinguish between “duress”, “economic duress”
and “undue influence”.

STUDY:
• Textbook Chapter 11 paragraph 4
• Gerolomou Constructions (Pty) Ltd V Van Wyk 2011 (4) SA 500 (GNP)
➔ Focus on the court’s application of undue influence. Take particular note of the financial and
economic influence that resulted in the court’s conclusion of undue influence.
• Pretorius and Ismail “Compromise, undue influence and economic duress Gerolomou Constructions (Pty)
Ltd v Van Wyk 2011 (4) SA 500 (GNP)” 2012 Obiter 681-692.
➔ The journal authors provide a critical assessment of the Gerolomou case and argue that the court
should rather have decided the matter on duress than that of undue influence. The authors make an
argument for economic duress. You should understand and be able to explain these arguments and
then critically compare this against the South African position on economic duress that you studied
in the Medscheme Holdings case.
➔ You will be expected to apply the correct authority in a given set of facts (after having critically
assessed the relevant case law and the arguments of the journal authors).
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

8.6 SUB-TOPIC: CONSUMER PROTECTION ACT

Under this sub-topic you should be able to:
• Briefly explain the impact the Consumer Protection Act 68 of 2008 has on the principles in this unit.

STUDY:
• Textbook Chapter 11 paragraph 5
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

8.7 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Aedilitean remedies • Duress (metus) • Opinions/predictions
• Actio redhibitoria • Fraudulent • Restitutio in integrum
• Actio quanti minoris misrepresentation (restitution)
• Delictual damages • Innocent • Restitution
• Dolus dans misrepresentation • Recission
(fundamental • Pre-contractual • Vis absoluta
misrepresentation) misstatement • Vis compulsiva
• Dolus incidens • Puffing • Warranty
(incidental • Negligent
misrepresentation). misrepresentation

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 UNIT 9: CONTRACTUAL CAPACITY
TEXTBOOK CHAPTER 4

9.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
9.2 SUB-TOPIC: CONTRACTUAL CAPACITY
Under this sub-topic you should be able to:
• Explain the difference between “restitution” and “rectification”.
• Explain how mental incapacity impacts a contract.
• Explain how contracting with a prodigal impacts a contract.
• Explain how insolvency may impact a contract.
• Explain how contracting with a minor impacts a contract.

STUDY:
• Textbook Chapter 4 paragraphs 1 and 2.1-2.4.
• Vallaro OBO v Road Accident Fund 2021 (4) SA 302 (GJ)
➔ This case relates to a party entering into a contract with no contractual capacity. Take particular note
of the consequence of such a contract and the reason why the contract could not be ratified.
• Bouwer OBO MG v Road Accident Fund 2021 (5) SA 233 (GP)
➔ This case relates to a party entering into a contract with no contractual capacity. Take particular note
of the consequence of such a contract and the reason why the contract could not be ratified.
• Section 15 of the Matrimonial Property Act 88 of 1984.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING
To add to your understanding of consensus, you should also read:
• Van Eck “The lack of contractual capacity – a fatal blow to contingency fee agreements” (2022) De Rebus
https://www.derebus.org.za/the-lack-of-contractual-capacity-a-fatal-blow-to-contingency-fee-
agreements/
• Van Eck “Citing spouses married in community of property in contracts” Without Prejudice March 2022,
34-35.

9.3 SUB-TOPIC: CONSUMER PROTECTION ACT

Under this sub-topic you should be able to:
• Briefly explain the impact the Consumer Protection Act 68 of 2008 has on the principles in this unit.

STUDY:
• Textbook Chapter 4 paragraph 2.5
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

9.4 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Full contractual • No contractual
capacity capacity
• Limited contractual • Rectification (ratify)
capacity • Rectification (rectify)

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 UNIT 10: FORMALITIES
TEXTBOOK CHAPTER 4

10.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
10.2 SUB-TOPIC: INTRODUCTORY TO FORMALITIES
Under this sub-topic you should be able to:
• Explain the general rule to formalities in contracts.
• Identify and discuss the exceptions to the general rule to formalities in contracts.
• Identify some of the most common formalities in contracts.
• Explain the formality of “writing” under the common law.
• Discuss the manner in which “writing” is recognised in electronic transactions.
• Explain the formality of “signature” under the common law.
• Discuss the manner in which “signature” is recognised in electronic transactions.
• Distinguish and explain the two types of electronic signatures recognised in South Africa.
• List the transactions that would not be regulated by the Electronic Communications and Transactions Act
25 of 2002.

STUDY:
• Textbook Chapter 4 paragraphs 5.1-5.2
• Section 12, 13 and Schedule 4 of the Electronic Communications and Transactions Act 25 of 2002
• Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and Another 2015 (2) SA 118 (SCA)
➔ This case relates to whether the formality of “writing” and “signature” would be possible
electronically. You should focus on the court’s discussion of these formalities and the application of
the Electronic Communications and Transactions Act 25 of 2002.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING
To add to your understanding of animus contrahendo, you should also read Manyathi-Jele “De Rebus “SCA rules
that e-mail contract cancellation legal” (2015) De Rebus https://www.derebus.org.za/sca-rules-that-e-mail-
contract-cancellation-legal/

10.3 SUB-TOPIC: STATUTORY FORMALITIES

Under this sub-topic you should be able to:
• Explain the formalities (and the consequences for non-compliance) for the sale of land under the
Alienation of Land Act 68 of 1981.
• Explain the formalities (and the consequences for non-compliance) for deeds of suretyships under the
General Amendments Act 50 of 1956.
• Explain the formalities (and the consequences for non-compliance) for consumer contracts under the
Consumer Protection Act 68 of 2008.
• Explain the formalities (and the consequences for non-compliance) for credit agreements under the
National Credit Act 34 of 2005.

STUDY:
• Textbook Chapter 4 paragraph 5.3
• Section 2(1) of the Alienation of Land Act 68 of 1981.
• Section 6 of the General Amendments Act 50 of 1956.
• Section 50(1) of the Consumer Protection Act 68 of 2008.
• Section 93 of the National Credit Act 34 of 2005.
• The notes you have taken during class.

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 • Any additional resources loaded onto Ulwazi.

10.4 SUB-TOPIC: SELF-IMPOSED FORMALITIES

Under this sub-topic you should be able to:
• Explain what is meant by “self-imposed formalities”.
• Identify and explain the purpose and validity of a non-variation clause.
• Identify and explain the purpose and validity of a non-cancellation clause.
• Identify and explain the purpose and validity of a non-waiver clause.
• Explain the “Shifren principle”.
• Discuss the doctrines that may be used to avoid the Shifren principle.
• Apply the principles of the Electronic Communications and Transactions Act 25 of 2002 to a “non-
variation”, “non-cancellation” and “non-waiver” clause.

STUDY:
• Textbook Chapter 4 paragraph 5.4
• Hutchison “Non-variation clauses in contract: any escape from the Shifren straitjacket” (2001) South
African Law Journal 720-746.
• SA Sentrale Ko-op Graanmaatskappy v Shifren 1964 (4) SA 760 (A)
➔ The court endorsed the validity of the non-variation clause and introduced the “Shifren principle. This
case reflects the pre-constitutional position of the court’s approach to non-variation clauses.
➔ As this case is in Afrikaans, you should place your focus on the English headnote, the discussion in
the textbook as well as class explanations regarding this case.
• Brisley v Drotsky 2002 (4) SA 1 (SCA)
➔ In this post-constitutional case, the validity of the non-variation clause was once again challenged
based on Constitutional values. The court confirmed the principles established in Shifren.
➔ As this case is in Afrikaans, you should place your focus on the English headnote, the discussion in
the textbook as well as class explanations regarding this case.
• Nyandeni Local Municipality v Hlazo 2010 (4) SA 261 (ECM)
➔ When reading this case you should consider the court’s reasoning for relaxing the non-variation
clause (Shifren principle).
• Impala Distributors v Taunus Chemical Manufacturing Co (Pty) Ltd 1975 (3) SA 273 (T)
➔ This case considered the validity of the non-cancellation clause and established that the non-
cancellation clause is meaningless without being coupled with a non-variation clause.
➔ As this case is in Afrikaans, you should place your focus on the English headnote, the discussion in
the textbook as well as class explanations regarding this case.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

10.5 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Electronic Signature • Non-variation clause • Signature
• Estoppel • Non-waiver clause • Writing
• Non-cancellation • Public policy
clause • Shifren principle

UNIT 11: LEGALITY AND LAWFULNESS

TEXTBOOK CHAPTER 5

11.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:

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11.2 SUB-TOPIC: INTRODUCTION TO LEGALITY
Under this sub-topic you should be able to:
• Identify and explain the different causes and consequences of illegality.
• Differentiate between statutory and common law illegality.
• Explain what is meant by the concept “pubic policy”.
• Explain what is meant by the concept “severance”.
• Explain what is the turpi causa rule.
• Explain what is the par delictum rule.

STUDY:
• Textbook Chapter 5 paragraph 1.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

11.2 SUB-TOPIC: STATUTORY ILLEGALITY

Under this sub-topic you should be able to:
• Explain the process to determine statutory illegality.
• Provide examples of statutory illegality in the form of legislative provisions.
• Explain the process to determine the consequences of illegality in a legislative provision.

STUDY:
• Textbook Chapter 5 paragraph 2.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

11.3 SUB-TOPIC: COMMON LAW ILLEGALITY

Under this sub-topic you should be able to:
• Explain public policy in the context of illegality.
• Explain the tension between the contractual values of “freedom to contract” and “pacta sunt servanda
(sanctity of contracts)” in the context of public policy.
• Discuss the sources of public policy.
• Explain and apply the public policy test (e.g., the objective and subjective test).

STUDY:
• Textbook Chapter 5 paragraph 3.1-3.2.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

11.4 SUB-TOPIC: CONSTITUTIONAL INFLUENCE

Under this sub-topic you should be able to:
• Explain the influence and impact the Constitution has had on determining public policy in contracts.
• Explain the influence and impact of the different values of the Constitution in a contract.
• Explain and apply the Barkhuizen test.
• Discuss the application of “fairness” in contracts.

STUDY:
• Textbook Chapter 5 paragraph 3.3-3.4.
• Barkhuizen v Napier 2007 (5) SA 323 (CC)
➔ You have already studied this case in an earlier unit. Remember that this case will also be used under
this unit and should also be studied under the concept of illegality.
• Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC)
➔ You have already studied this case in an earlier unit. Remember that this case will also be used under
this unit and should also be studied under the concept of illegality.

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 • Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd 2023 (6) SA 327 (CC)
➔ Consider how the court approached the concepts of “fairness and reasonableness” in the context of
Barkhuizen public policy test.
➔ You should be able to critique both the majority and minority judgements and thereby provide a
critical view of the correctness of the court’s approach and application of principles, both in the
context of the minority and majority judgement.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

11.5 SUB-TOPIC: CHAMPTERTY AGREEMENTS (PACTA DE QUOTA LITIS)

Under this sub-topic you should be able to:
• Explain what is meant by the term “champerty” and “pacta de quota litis”.
• Explain how the Contingency Fees Act 66 of 1997 impacted champerty agreements.

STUDY:
• Textbook Chapter 5 paragraph 3.5.1.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

11.6 SUB-TOPIC: RESTRAINT OF TRADE AGREEMENTS

Under this sub-topic you should be able to:
• Explain what is meant by the term “restraint of trade”.
• Identify and discuss the competing interest in restraints of trade (e.g., freedom to contract and pacta sunt
servanda).
• Discuss the evolution of the restraints of trade in South Africa (including, the English Law position, the
position in Magna Alloys and that of Basson case).
• Discuss and apply the Basson Test (including the expansion of the test in Reddy).

STUDY:
• Textbook Chapter 5 paragraph 3.5.2.
• Magna Alloys & Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A)
➔ This case changed the English law position (originally adopted in South Africa) and linked the question
of enforceability of restraints of trade to that public policy.
• Basson v Chilwan 1993 (3) SA 742 (A)
➔ This case expanded upon the principles established in the Magna Alloys and developed a test to
determine whether a restraint of trade clause is against public policy (or not). You should both know
and be able to apply this test in a set of facts.
➔ Take special note of the consequences of a restraint of trade provision being against public policy
(e.g., consider whether the court held it was “void” or “unenforceable”).
• Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA)
➔ This case expanded upon the Basson Test and added (indirectly) a fifth question that must be asked.
When apply the Basson Test to a set of facts, you must also include the extension of the test of Reddy.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

11.7 SUB-TOPIC: CLAIMING OF INTEREST

Under this sub-topic you should be able to:
• Explain what is meant by the term “interest”, “interest rate” and “usury”.
• Explain the In duplum rule.
• Explain the principles surrounding claiming of interest.

STUDY:
• Textbook Chapter 5 paragraph 3.5.3.
• The notes you have taken during class.

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 • Any additional resources loaded onto Ulwazi.

11.8 SUB-TOPIC: CLAUSES OUSTING THE JURISDICTION OF THE COURTS

Under this sub-topic you should be able to:
• Explain the problem with clauses that attempt to restrict a party from having a legal dispute adjudicated
by the courts.
• Identify and explain the challenges and application of a “conclusive proof” clause (applied in certificates
of balances), “time-bar” clause, a clause preventing a debtor from obtaining relief and a “parate executie”
clause.

STUDY:
• Textbook Chapter 5 paragraph 3.5.4.
• There may be some cases that would apply to these clauses (such as the Barkhuizen case). You should
consider the case discussions in the textbook to supplement your understanding of the clauses under this
sub-topic.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

11.9 SUB-TOPIC: CONSEQUENCES OF ILLEGALITY

Under this sub-topic you should be able to:
• Differentiate and explain the “turpi causa” rule and the “par delictum” rule.
• Explain when the par delictum rule may be relaxed.
• Explain when an illegal part to a contract may be severed.

STUDY:
• Textbook Chapter 5 paragraph 4.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

11.10 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Certificates of • Interest • Restraint of trade
balances • Interest rate • Severance
• Conclusive proof • Paratie executie • Time bar clauses
• Champerty (pacta de • Pacta sunt servanda • Turpi causa rule
quota litis) (sanctity to contract) • Par delictum rule
• Freedom to contract • Prima facie proof
• In duplum • Public policy

UNIT 12: POSSIBLITY OF PERFORMANCE

TEXTBOOK CHAPTER 4

12.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
12.2 SUB-TOPIC: POSSIBLITY OF PERFORMANCE
Under this sub-topic you should be able to:
• Explain what is meant by the term “possibility of performance”
• Differentiate between “initiation impossibility” and “supervening impossibly”.
• Explain the different consequences of “Initial impossibility” and “supervening impossibly”.

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 • Explain what is meant by the terms “objective impossibility”, “factual impassivity”, “legal impossibly” and
“partial impossibly”.
• Explain the exceptions applicable to impossibility.

STUDY:
• Textbook Chapter 4 paragraphs 3.1
• Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG 1996 (4) SA 1190 (A)
➔ The question in this case was whether the impossibly was reasonably foreseen, and, if so, then the
principle of supervening impossibly could not apply. When studying this case consider the
requirements for supervening impassivity, with specific focus on whether an impossibility is
foreseeable (or not).
➔ Also, when studying this case, you should determine: What is the impact of having foreseen the
impossibly?
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

12.3 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Factual impossibility • Partial impossibility • Supervening
• Initial impassivity • Possibility of impossibly
• Legal impossibly performance
• Objective impassivity

UNIT 13: CERTIANTY

TEXTBOOK CHAPTER 4

13.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
13.2 SUB-TOPIC: INTRODUCTION TO THE REQUIREMENT OF CERTAINTY
Under this sub-topic you should be able to:
• Explain what is meant by the principle “certainty”.
• Explain how certainty can be achieved in a contract.
• Differentiate between a “generic obligation”, “alternative obligation” and a “facultative obligation”.
• Explain how contracting with a minor impacts a contract.

STUDY:
• Textbook Chapter 4 paragraphs 3.1-3.2
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

13.3 SUB-TOPIC: FIXING OR VARYING PERFORMANCE

Under this sub-topic you should be able to:
• Explain the principles related to the discretion to fix or vary contractual performance.
• Explain, with reference to case law, when a contracting may vary contractual performance.

STUDY:
• Textbook Chapter 4 paragraph 3.3
• NBS Boland Bank v One Berg River Drive CC; Deeb v ABSA Bank Ltd; Friedman v Standard Bank of SA Ltd
1999 (4) SA 928 (SCA)

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 ➔ This case illustrates how performance may be varied and links it to the principle of abitrio boni viri.
You should study the case as to the rules when a party may unilaterally amend or vary a contract.
• Absa Bank Ltd v Lombard 2005 5 SA 350 (SCA)
➔ This case is almost identical to the NBS Boland Bank, but by applying the principle of abitrio boni viri
the court concluded differently to NBS Boland Bank. There is an an important reason for this, and you
should be able to compare this case and explain why this case’s outcome is different to the NBS
Boland Bank case.
• Spar Group Limited and Others v Twelve Gods Supermarket (Pty) Ltd and Others (1100/2022) [2025] ZASCA
7 (30 January 2025)
➔ This case addresses the principle of abitrio boni viri and discretionary powers. You should study the
case as to the rules when a party may unilaterally amend or vary a contract in the context of its
discussion of the NBS Boland Bank case.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

13.4 SUB-TOPIC: AGREEMENTS TO AGREE

Under this sub-topic you should be able to:
• Explain what is meant by the term “agreement to agree”.
• Identify and briefly explain the concerns related to “agreements to agree”.
• Explain the current legal position and validity of “agreements to agree”.
• Describe briefly how the courts have adopted a new approach to “agreements to agree”.
• Explain what a “deadlock-breaking mechanism” is and its purpose in the context of “agreements to agree”.

STUDY:
• Textbook Chapter 4 paragraph 3.4
• Shepherd Real Estate Investments (Pty) Ltd v Roux Le Roux Motors CC 2020 (2) SA 419 (SCA)
➔ When studying this case, you should consider whether the arbitration clause was sufficient to address
the concern of “certainty” in the contract. You should also focus on the court’s position and function
of the “deadlock-breaking mechanism”.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

13.5 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Abitrio boni viri • Deadlock-breaking • Generic obligation
• Alternative obligation mechanism
• Certainty • Facultative obligation

SEMESTER 2 – DETAILED BREAKDOWN

UNIT 14: PARTIES TO A CONTRACT
TEXTBOOK CHAPTER 7

14.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
14.2 SUB-TOPIC: PLURALITY OF PARTIES
Under this sub-topic you should be able to:
• Explain what is meant by the term “plurality of parties”.
• Differentiate and explain the different types of joint liability and entitlements (e.g., simple joint, common
joint, joint and several).

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 • Explain the consequences of the different types of joint liability and entitlements.

STUDY:
• Textbook Chapter 7 paragraphs 1-2
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

14.3 SUB-TOPIC: PRIVITY OF CONTRACT

Under this sub-topic you should be able to:
• Explain what is meant by the term “privity of contract”.
• Explain the limitations of the principle of privity of contracts.

STUDY:
• Textbook Chapter 7 paragraphs 3
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

14.4 SUB-TOPIC: STIPULATIO ALTERI (BENEFIT OF A THIRD PARTY)

Under this sub-topic you should be able to:
• Explain what is meant by the term “stipulatio alteri”.
• Identify and explain the requirements of a stipulatio alteri.
• Explain the effect and consequences of a stipulatio alteri.

STUDY:
• Textbook Chapter 7 paragraphs 4
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

14.4 SUB-TOPIC: AGENCY

Under this sub-topic you should be able to:
• Explain how representation by agency works.
• Explain what is meant by “agent”, “principal”, “third party”, “mandate”, “ratification”, “ostensible
authority” and “estoppel”.
• Explain when the conduct of an agent may be ratified.
• Explain the challenges that exist between estoppel and ostensible authority and how our courts have
applied these principles.
• List and explain the requirements for contracts concluded by an agent.
• Differentiate between “special power” and “general power” in agency.
• Explain when authority may be terminated.
• Explain the legal effect of agency.
• Differentiate and explain the “doctrine of the undisclosed principal” and “doctrine of the unidentified
principal”.
• Explain the effect and consequences of a stipulatio alteri.

STUDY:
• Textbook Chapter 7 paragraphs 5
• Makate v Vodacom (Pty) Ltd 2016 (6) BCLR 709 (CC)
➔ When studying this case, you should focus on the distinction and rules the court established between
estoppel and ostensible authority in the context of a contract of agency.
➔ For this particular case, you need to study and compare both the majority and minority judgements.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING

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 To add to your understanding of this section of the work, you should also read:
• Glover “Agency in South Africa: Mapping its defining characteristics” (2021) Acta Juridica 243-273.
• Pretorius “Authority by representation – a rule lacking a theory: A reappraisal of Makate v Vodacom (Pty)
Ltd 2016 (4) SA 121 (CC)” 2021 Acta Juridica 297-319.

14.5 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Agency • Mandate • Simple joint liability
• Agent • Ostensible authority • Special power
• Common joint liability • Principal • Stipulatio alteri
• Estoppel • Privity of contract • Third party
• General power • Plurality of parties • Undisclosed principal
• Joint and several • Ratification • Unidentified principal
liability • Representation

UNIT 15: CONTENT OF A CONTRACT

TEXTBOOK: CHAPTER 6

15.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
15.2 SUB-TOPIC: INTRODUCTION TO THE TYPES OF TERMS
Under this sub-topic you should be able to:
• Differentiate between a “term” and an “obligation”
• List and explain the different types of obligations.
• List and explain the different types of terms.
• Differentiate between “essentialia”, “naturalia” and “incidentalia”.
• Differentiate between “express terms”, “implied terms” and “tacit terms”.
• Differentiate between “terms” and “statements”.
• Explain the rules that apply to the terms of a contract.

STUDY:
• Textbook Chapter 6 paragraphs 1-2
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

15.3 SUB-TOPIC: EXPRESS TERMS

Under this sub-topic you should be able to:
• Briefly explain how express terms may be incorporated into a contract (with specific focus on
incorporation by reference, caveat subscriptor rule and ticket case rules).
• List and explain the different types of obligations.
• List and explain the different types of terms.
• Differentiate between “essentialia”, “naturalia” and “incidentalia”.
• Differentiate between “express terms”, “implied terms” and “tacit terms”.
• Differentiate between “terms” and “statements”.
• Explain the rules that apply to the terms of a contract.

STUDY:
• Textbook Chapter 6 paragraphs 3.2.1
• The notes you have taken during class.

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 • Any additional resources loaded onto Ulwazi.

15.4 SUB-TOPIC: IMPLIED TERMS

Under this sub-topic you should be able to:
• Differentiate between terms implied by law and terms implied by trade usage.
• Explain the rules that apply to implied terms.

STUDY:
• Textbook Chapter 6 paragraphs 4
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

15.5 SUB-TOPIC: TACIT TERMS

Under this sub-topic you should be able to:
• Explain the nature of tacit terms.
• Explain the officious bystander test.
• Explain the business efficiency test.
• Identify and explain the factors that would influence the officious bystander and business efficiency tests.

STUDY:
• Textbook Chapter 6 paragraphs 5.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

15.6 SUB-TOPIC: SPECIFIC TYPES OF CLAUSES (TIME CLAUSES, CONDITIONS AND SUPPOSITIONS)
Under this sub-topic you should be able to:
• Explain the nature of a time clause and the impact such a clause may have on a contract.
• Differentiate and explain a “resolutive” and “suspensive” time clause.
• Explain the nature, effect and fulfilment of a condition and the impact of conditions on contractual
obligations.
• Differentiate and explain a “resolutive condition” and a “suspensive condition”.
• Explain the impact a suspensive condition on a contractual obligation.
• Explain the doctrine of fictional fulfilment of a condition.
• Explain the nature and impact of a supposition.
• Differentiate and explain the difference between a condition and a supposition.
• Differentiate and explain the difference between a time clause and a condition.

STUDY:
• Textbook Chapter 6 paragraphs 6.1.1 – 6.2.3
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

15.7 SUB-TOPIC: SPECIFIC TYPES OF CLAUSES (WARRANTIES)

Under this sub-topic you should be able to:
• Explain the nature of a warranty.
• Impact of a warranty on a contract.

STUDY:
• Textbook Chapter 6 paragraphs 6.2
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

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15.8 SUB-TOPIC: SPECIFIC TYPES OF CLAUSES (EXCLUSION/EXEMPTION CLAUSES)
Under this sub-topic you should be able to:
• Explain the nature and purpose of an exclusion clause (also known as an exemption clause).
• Provide examples of exclusion clauses.
• Explain when exclusion clauses would be invalid or refused to be enforced.
• The basic principles of how exclusion clauses would be interpreted.
• Explain how the provisions of the Consumer Protection Act 68 of 2008 would impact the enforcement and
validity of exclusion clauses.
• Impact of a warranty on a contract.

STUDY:
• Textbook Chapter 6 paragraphs 6.3
• Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd 2023 (6) SA 327 (CC)
➔ You have already studied this case in an earlier unit. Remember to study it also in the context of
exemption clauses. Specific focus should be placed how the court assessed the reasonability of the
exemption clause and also whether it would be valid in relation to theft of an employee. Take special
care to only study the majority decision in relation to this sub-topic.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.
ADDITIONAL READING
To add to your understanding of exemption clauses, you should also read Stoop “The current status of the
enforceability of contractual exemption clauses for the exclusion of liability in the South African law of contract”
(2008 SA Merc LJ 496-509.

15.9 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Business efficiency • Naturalia • Suspensive condition
test. • Obligation (condition precedent)
• Condition • Officious bystander • Suspensive time
• Essentialia test clause
• Exclusion clause (also • Resolutive condition • Tacit term
known as exemption (condition • Term
clause) subsequent) • Time clause
• Express term • Resolutive time • Warranty
• Implied term clause
• Incidentalia • Supposition

UNIT 16: TRANSFER OF OBLIGATIONS

TEXTBOOK: CHAPTER 12

16.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
16.2 SUB-TOPIC: CESSION
Under this sub-topic you should be able to:
• Differentiate and explain the terms “cession”, “delegation” and “assignment”.
• Explain the nature of cession.
• List and explain the requirements for cession.
• Identify and explain what is meant by “delectus personae”.
• Identify and explain what is meant by “pacta de non cedendo”.

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 • Explain the rules that relate to cession and its impact on the debtor.
• Explain the consequences of cession.
• Explain what is cession in securitatem debiti.

STUDY:
• Textbook Chapter 12 paragraphs 1
• University of Johannesburg v Auckland Park Theological Seminary and another 2021 (8) BCLR 807 (CC)
➔ When studying this case, you should focus how the court distinguished between delectus personae
and pacta de non cedendo.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

16.3 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Assignment • Cession in • Delegation
• Cession securitatem debiti • Pacta de non cedendo
• Delectus personae

UNIT 17: BREACH OF A CONTRACT

TEXTBOOK: CHAPTER 8

17.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
17.2 SUB-TOPIC: INTRODUCTION TO BREACH
Under this sub-topic you should be able to:
• Explain what is meant by the term “breach”.
• Explain what is meant by “divisible” and “indivisible” performance.
• Explain what is meant by “mora”.
• Identify and briefly explain the different categories and forms of breach recognised in South Africa.
• Explain how the principle of fault impacts breach.
• Explain how public policy may impact breach.
• Identity and explain the main remedies of breach (e.g., cancellation, specific performance and damages).

STUDY:
• Textbook Chapter 8 paragraph 1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

17.3 SUB-TOPIC: POSITIVE MALPERFORMANCE

Under this sub-topic you should be able to:
• Explain what is meant by “positive malperformance”.
• List and explain the requirements for positive malperformance.
• Explain the consequences of positive malperformance.

STUDY:
• Textbook Chapter 8 paragraph 2
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

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17.4 SUB-TOPIC: MORA DEBITORIS
Under this sub-topic you should be able to:
• Explain what is meant by “mora debitoris”.
• Explain how mora debitoris is different to other forms of breach.
• List and explain the requirements for mora debitoris.
• Distinguish and explain “mora ex re” and “mora ex persona”.
• Explain the consequences of mora debitoris.
• Explain what is meant by the term “lex commissoria” (cancellation clause).

STUDY:
• Textbook Chapter 8 paragraph 3
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

17.5 SUB-TOPIC: MORA CREDITORIS

Under this sub-topic you should be able to:
• Explain what is meant by “mora creditoris”.
• Explain the nature of mora creditoris and how it is different to other forms of breach.
• List and explain the requirements for mora creditoris.
• Explain the consequences of mora creditoris.

STUDY:
• Textbook Chapter 8 paragraph 4
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

17.6 SUB-TOPIC: REPUDIATION

Under this sub-topic you should be able to:
• Explain what is meant by “repudiation”.
• Explain the nature of repudiation and how it is different to other forms of breach.
• Provide examples of repudiation.
• List and explain the requirements for repudiation.
• Explain the consequences of repudiation.

STUDY:
• Textbook Chapter 8 paragraph 5
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

17.7 SUB-TOPIC: PREVENTION OF PERFORMANCE

Under this sub-topic you should be able to:
• Explain what is meant by “prevention of performance”.
• Explain the nature of prevention of performance and how it is different to other forms of breach.
• List and explain the requirements for prevention of performance.
• Explain the consequences of prevention of performance.

STUDY:
• Textbook Chapter 8 paragraph 6
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

17.7 SUB-TOPIC: RECAP AND SUMMARY

Under this sub-topic you should be able to:

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 • Revise the information you have learnt in the previous sub-topics.
• Supplement your notes based on your class notes.

STUDY:
• Textbook Chapter 8 paragraph 7
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

17.8 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Breach • Lex commisoria • Positive
• Cancellation (cancellation clause) malperformance
• Damages • Mora • Prevention of
• Divisible performance • Mora creditoris performance
• Indivisible • Mora debitoris • Repudiation
performance • Mora ex re • Specific performance
• Mora ex persona • Time is of the essence

UNIT 18: REMEDIES FOR BREACH OF CONTRACT

TEXTBOOK: CHAPTER 9

18.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
18.2 SUB-TOPIC: INTRODUCTION TO REMEDIES
Under this sub-topic you should be able to:
• Explain what is meant by the term “remedy”.
• Explain the different categories of remedies.
• Explain the principle of “election” in the context of contractual remedies.
• Explain the “once and for all” rule.

STUDY:
• Textbook Chapter 9 paragraph 1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

18.3 SUB-TOPIC: EXCEPTIO NON ADEMPLETI CONTRACTUS

Under this sub-topic you should be able to:
• Explain what is meant by exceptio non adempleti contractus.
• List and explain the requirements for exceptio non adempleti contractus.
• Explain how the principle of fairness operates in exceptio non adempleti contractus.

STUDY:
• Textbook Chapter 9 paragraph 2
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

18.4 SUB-TOPIC: SPECIFIC PERFORMANCE

Under this sub-topic you should be able to:
• Explain what is meant by specific performance.

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 • Explain the nature of specific performance.
• List and explain the exceptions to specific performance.
• Explain the court’s discretion to refuse the remedy of specific performance.

STUDY:
• Textbook Chapter 9 paragraph 3
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

18.5 SUB-TOPIC: CANCELLATION

Under this sub-topic you should be able to:
• Explain what is meant by cancellation.
• List and explain the requirements for cancellation.
• Explain the effect of cancellation.
• Explain cancellation in the context of divisible and indivisible contracts.
• Explain how fairness plays a role in cancellation.

STUDY:
• Textbook Chapter 9 paragraph 4
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

18.6 SUB-TOPIC: DAMAGES

Under this sub-topic you should be able to:
• Explain what is meant by damages.
• List and explain the requirements for damages.
• Explain how damages may be calculated.
• Differentiate and explain “general damages” and “special damages”.
• Explain the contemplation principle.
• Explain the convention principle.
• Explain what is meant by a flexible approach.
• Explain what is meant by having a duty to mitigate damages.

STUDY:
• Textbook Chapter 9 paragraph 5
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

18.7 SUB-TOPIC: PENALTIES

Under this sub-topic you should be able to:
• Explain what is meant by penalties.
• List and explain the reasons for including penalty clauses in a contract.
• Define “penalties” under the Conventional Penalties Act 15 of 1962.
• List and explain the different types of penalties under the Conventional Penalties Act 15 of 1962
• Explain the consequences of penalties.

STUDY:
• Textbook Chapter 9 paragraph 5
• Conventional Penalties Act 15 of 1962.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

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18.8 SUB-TOPIC: CONSUMER PROTECTION ACT
Under this sub-topic you should be able to:
• Briefly explain the impact the Consumer Protection Act 68 of 2008 has on the principles in this unit.

STUDY:
• Textbook Chapter 9 paragraph 7.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

18.9 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Cancellation • Forfeiture clause • Pre-estimated
• Election • Damages damages clause
• Exceptio non • Material breach • Remedies
adempleti contractus • Penalties • Specific performance

UNIT 19: TERMINATION AND EXTINCTION OF OBLIGATIONS

TEXTBOOK: CHAPTER 12

19.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
19.2 SUB-TOPIC: TERMINATION
Under this sub-topic you should be able to:
• List the different ways in which a contract (or its obligations) may be terminated/extinguished.

STUDY:
• Textbook Chapter 12 paragraph 1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

19.3 SUB-TOPIC: PERFORMANCE

Under this sub-topic you should be able to:
• Explain how performance may terminate/extinguish a contract (or its obligations).
• Explain what is meany by “alternative performance”.
• Explain “full and final settlement”.
• Explain performance made by a third party.

STUDY:
• Textbook Chapter 12 paragraph 2.1
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

19.4 SUB-TOPIC: RELEASE AND WAIVER

Under this sub-topic you should be able to:
• Explain how release and waiver may terminate/extinguish a contract (or its obligations).
• Differentiate and explain a “release” and a “waiver”.

STUDY:
• Textbook Chapter 12 paragraph 2.2
• The notes you have taken during class.

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 • Any additional resources loaded onto Ulwazi.

19.5 SUB-TOPIC: NOVATION

Under this sub-topic you should be able to:
• Explain how novation may terminate/extinguish a contract (or its obligations).

STUDY:
• Textbook Chapter 12 paragraph 2.3
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

19.6 SUB-TOPIC: COMPROMISE

Under this sub-topic you should be able to:
• Explain how compromise may terminate/extinguish a contract (or its obligations).

STUDY:
• Textbook Chapter 12 paragraph 2.4
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

19.7 SUB-TOPIC: MERGER

Under this sub-topic you should be able to:
• Explain how merger may terminate/extinguish a contract (or its obligations).

STUDY:
• Textbook Chapter 12 paragraph 2.5
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

19.8 SUB-TOPIC: SET-OFF

Under this sub-topic you should be able to:
• Explain how set-off may terminate/extinguish a contract (or its obligations).
• List and explain the requirements for set-off.

STUDY:
• Textbook Chapter 12 paragraph 2.5
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

19.9 SUB-TOPIC: PRESCRIPTION

Under this sub-topic you should be able to:
• Explain how prescription may terminate/extinguish a contract (or its obligations).
• List and explain the different time periods that may impact prescription.
• Explain when prescription may be interrupted.

STUDY:
• Textbook Chapter 12 paragraph 2.6
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

19.10 SUB-TOPIC: SUPERVENING IMPOSSIBILITY

Under this sub-topic you should be able to:
• Explain how supervening impossibility may terminate/extinguish a contract (or its obligations).

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 • List and explain the requirements for supervening impossibility.
• Explain the effect of supervening impossibility on contracts.
• Explain how partial or temporary impossibility impacts a contract.
• Explain the exceptions to supervening impossibility.

STUDY:
• Textbook Chapter 12 paragraph 2.7
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

19.11 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Alternative
performance
• Compromise
• Novation
• Performance
• Release
• Set-off
• Supervening
impossibility
• Waiver

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 UNIT 20: INTERPRETATION OF CONTRACTS
TEXTBOOK: CHAPTER 6

20.1 LEARNING OUTCOMES

After completion of this unit, you should be able to discuss and apply the legal principles for each sub-topic as set
out below, with reference to the listed case law:
20.2 SUB-TOPIC: PAROL EVIDENCE RULE
Under this sub-topic you should be able to:
• Explain the principle of the parol evidence rule.
• Differentiate between the integration rule and the interpretation rule.
• Explain the exceptions to the parol evidence rule.
• Discuss the development and relaxation of the rule in the context of leading case law.

STUDY:
• Textbook Chapter 6 paragraphs 3.2.2
• University of Johannesburg v Auckland Park Theological Seminary and another 2021 (8) BCLR 807 (CC)
➔ When studying this case, you should focus on the court’s approach and explanation of the integration
rule and the interpretation rule.
➔ In some respects, the court relaxed the application of the parol evidence rule. You should be able to
explain the court’s approach to the parol evidence rule and how it has developed in this case.
• Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others 2022 (1) SA
100 (SCA)
➔ When studying this case, you should consider the principles the court established in relation to
interpreting a contract. You should also place attention on how the court applied the principles
established in the University of Johannesburg case.
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

20.3 SUB-TOPIC: INTERPRETATION PRINCIPLES

Under this sub-topic you should be able to:
• Explain the principle related to the interpretation of contracts.
• Explain what is meant by a “unitary approach”.
• Explain what factors must be taken into account when interpreting a written contract.
• List, identify and explain the different canons (rules) of interpretation.

STUDY:
• Textbook Chapter 6 paragraphs 3.3
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

20.5 SUB-TOPIC: DRAFTING PRINCIPLES

Under this sub-topic you should be able to:
• Explain the principle related to the drafting of contracts.
• Explain the ethical duties of drafting a contract.
• List, identify and explain the different clauses in a contract.
• Draft a basic contract and clauses (as per the guidance provided in class)

STUDY:
• The notes you have taken during class.
• Any additional resources loaded onto Ulwazi.

20.6 KEY TERMS AND CONCEPTS

After you have completed this unit, you should be familiar with (and know) the following key terms and
concepts:
• Contra proferentum • Integration rule
• Expressio unius est • Interpretation rule
exclusio alterius • Parol evidence rule
• Eiusdum generis • Unitary approach
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