30 Questions
What is the definition of a contract?
An agreement entered into by 2 or more parties with the intention of creating a legal obligation
What are the consequences if any of the requirements ensuring the obligations in a contract are capable of being performed are missing?
The contract will not be considered valid.
What is meant by a contract being a juristic act?
It attaches legal consequences intended by the parties.
What is Minas Contrahendi?
Parties must seriously intend to create legally enforceable obligations
How many parties are typically involved in a contract?
At least two parties.
How is the intention of the parties determined?
Factual inquiry based on available evidence
What does reciprocity in a contract mean?
One party's performance is promised in exchange for another's.
What distinguishes legally binding agreements from contracts?
Legally binding agreements may not always create legal obligations
Give an example of an absolving agreement.
Canceling an obligation in a sale agreement by entering into a subsequent agreement to absolve the seller or buyer
What does freedom of contract allow parties to do?
Agree to anything possible and lawful.
In a lease agreement, what might the tenant undertake to do?
Pay the rental amount and refrain from causing damage to the leased property.
What does an agreement absolving a friend from paying the purchase price represent?
Transfer agreement that extinguishes obligations and transfers rights
What is vertical application of the constitution in South Africa?
The state must respect and promote the constitution in dealings with private individuals.
Explain horizontal application of the constitution in South Africa.
Private individuals must also respect the constitution in their dealings.
What is the difference between direct and indirect horizontal application of the constitution?
Direct application allows one to attack a contract based on noncompliance with the constitution without reliance on common law, while indirect application occurs when the bill of rights impacts a dispute between private parties by exerting influence.
What is the significance of Section 392 of the constitution in relation to private law?
It requires courts and tribunals to promote the spirit, purport, and objects of the bill of rights when interpreting legislation and developing common and customary law.
How does the constitution affect private individuals in South Africa?
Private individuals are obligated to promote and respect the constitution in their dealings.
What happens to laws that are inconsistent with the South African constitution?
They will be declared invalid.
What is the burden of proof for the existence of a contract?
The burden of proof lies with the person alleging its existence.
Explain the will theory of contract formation.
The will theory is based on concurring wills from both parties.
What is the basis of the declaration theory of contract formation?
The declaration theory is based on the appearance of consensus.
How does the reliance theory differ from the will theory in terms of contract formation?
Reliance theory is based on induced consensus by the other party.
What is the key difference between the will theory and the declaration theory regarding contract formation?
Will theory is subjective, while declaration theory favors form over substance.
How does the appearance of consensus impact the conclusion of a contract?
Appearance of consensus can lead to the conclusion of a contract, even if consensus is not actually present.
Explain the concept of Lorenz theory in the context of contract formation.
Lorenz theory is a secondary basis of a contract, emphasizing the importance of keeping it in mind during discussions of contract formation.
How does the principle of sanctity of contract influence the enforcement of agreements?
The principle of sanctity of contract establishes a legal obligation to honor and enforce contracts that are entered into freely and seriously.
Discuss the role of good faith in contractual dealings and its alignment with the principle of Ubuntu.
Good faith requires parties to act honestly and fairly in their contractual interactions, reflecting the principle of Ubuntu in African philosophy.
Explain the concept of privity of contract and its implications for third parties.
Privity of contract dictates that only the parties involved in a contract have rights and obligations, excluding third parties from being affected by the agreement.
How do the values of the law of contract sometimes compete with each other?
The values of the law of contract may compete when courts need to balance concepts like freedom of contract, sanctity of contract, and good faith.
Why is it important for courts to strike a balance between the competing values of the law of contract?
Courts must balance these values to ensure fairness, uphold promises, and align with constitutional values, fostering legal certainty in contractual relationships.
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