29 Questions
What is a contract?
An agreement entered into by two or more parties with the intention of creating a legal obligation or legal obligations.
What is the significance of 'Aminus contrahendi' in relation to contracts?
It signifies the serious intention to create legally enforceable obligations.
How is the intention to contract determined?
It is determined as a question of fact with reference to available evidence.
Explain the legal protection in the absence of 'Aminus contrahendi' in a contract.
Where one party leads another to believe that they do not seriously intend to be bound, the law will uphold the contract if there was a reasonable belief in the validity of the contract.
Differentiate between an agreement and a contract.
An agreement is not necessarily a contract, as a contract requires the intention to create legally enforceable obligations.
Why are social or domestic arrangements not considered contracts?
Social or domestic arrangements do not intend to create legally binding obligations, so they do not qualify as contracts.
What are the 6 features of the nature of a contract?
- Juristic act
- Bilateral/Multilateral
- Undertaking
- Reciprocity
- Freedom of contract
- Consensual
Explain the concept of legality in a contract.
The contract must be lawful and not prohibited by law, such as statutes, common law, or the Constitution.
What is the significance of possibility in a contract?
The obligations undertaken in a contract must be capable of performance when the agreement is made.
Define the concept of certainty in a contract.
A contract must have definite or determinable content so that obligations can be ascertained and enforced.
What is the essence of reciprocity in a contract?
Reciprocity means that one party's performance is promised in exchange for the other party's performance.
Explain the concept of consensual in relation to a contract.
A contract is consensual when it is based on an agreement of some sort between the parties involved.
According to SA's approach, what is the basis of a contract?
Concurring wills
Who has the onus to prove the existence of a contract?
He who alleges
What is the effect of mistake on a contract?
Contract fails if the reliance is unreasonable
What are the cornerstones (values) of a contract?
- Freedom of contract 2. Sanctity of contract 3. Good faith 4. Privity of contract
What principle states that contracts freely and seriously entered into must be honored?
Pacta sunt servanda
Explain the Objective Semi-objective approach in relation to contracts.
Contract stands if reliance is reasonable; contract fails if reliance is unreasonable
What is the difference between direct horizontal application and indirect horizontal application of the Constitution?
Direct horizontal application attacks a contract on the basis of non-compliance with the Constitution without reference to common law, while indirect horizontal application exerts the influence of the Constitution on contract law in a dispute between private parties.
Explain the goal of contract law in terms of legal certainty.
The goal is to create legal certainty by ensuring that people fulfill their promises.
According to section 39(2) of the Constitution, what must every court, tribunal, or forum do when interpreting legislation or developing common law?
Promote the spirit, purport, and objects of the Bill of Rights.
What are the cornerstones of competition in contract law?
Values like sanctity of contract, good faith, freedom of contract.
In the case of Barkhuizen v Napier, what control does the Constitution have over contracts?
Contracts are subject to constitutional control.
What must be proven to show the existence of a contract according to the basis of a contract?
Consensus
What is the significance of freedom and sanctity of contract in understanding cornerstones?
It helps in understanding the competing nature of these cornerstones.
Why are Standard Form Contracts (SFC) commonly used in transactions?
SFCs are convenient, less costly, and the majority of transactions (estimated at 95%) are concluded using them.
What is the difference between actual subjective agreement and apparent objective agreement in contract law?
Actual subjective agreement involves a true meeting of minds, while apparent objective agreement is when one party is under the reasonable belief that an agreement has been reached.
Give an example of how apparent objective agreement can be formed in a contract.
When party X is under the reasonable belief created by party Y that an agreement has been reached.
How does the concept of good faith relate to equity and public policy in contract law?
Good faith is important for promoting fairness in contractual dealings and aligning with public policy.
Learn about the law of contract and the concept of agreements with Mr. LK Thutse. Find out the consultation hours and contact details for further assistance. Explore the top-ranking University of Pretoria Law School in Africa and worldwide.
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