JHY101 JHV102 JHZ101 Study Notes - Volume 2 - Part B PDF

CHAPTER 12 ---------- Introduction - The parties must have the capacity (legal ability) to enter into the agreement. - The contract must not be entered into for an unlawful purpose. - Lapse of time - Revocation - Rejection - Death of the offeror or the offeree - All importa...

CHAPTER 12 ---------- Introduction - The parties must have the capacity (legal ability) to enter into the agreement. - The contract must not be entered into for an unlawful purpose. - Lapse of time - Revocation - Rejection - Death of the offeror or the offeree - All important *(ie* material) terms agreed upon by the parties must be recorded in the preprinted document. If clauses are to be added, this can be done in the space entitled - It must be stressed that no estate agent may in his capacity as an estate agent draft or complete any clause in any sale, lease or mandate document, unless he has complied with the standard of training prescribed in terms of the Property Practitioners Act: see the discussion in chapter 8. - a representative capacity. The best is to state that he signs \'for and on behalf of\' the party concerned. - A contract need not be witnessed to be valid. If a witness does sign, he need not acquaint himself with the terms of the contract; he is only required to make sure that the contract was signed by the person whose signature he witnesses. (Note that the consent of a spouse as required by the Matrimonial Property Act 88 of 1984 *must* be attested by two witnesses - see the discussion below.) - \- Married males and females Companies ---------------------------------------------------------------------------------------------------------------------------------- -- Address\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... ---------------------------------------------------------------------------------------------------------------------------------- -- Married males and females separate property was also subject to the husband\'s marital power, except if the donor or testator in. question stipulated specifically that it should not be subject to the marital power. - sell, mortgage, burden with a servitude or confer any other real right in immovable property forming pan of the joint estate; - allow a tenant to take occupation of immovable property forming pan of the joint estate; - sell, cede or pledge any shares or mortgage bonds forming pan of the joint estate; - buy property in terms of a *contract* as defined in the Alienation of Land Act 68 of 1981 *(ie* an instalment sale); - bind himself or herself as surety. - The position outlined above applies to all marriages concluded under South African law. The contractual capacity of spouses married under a foreign legal system must be determined in accordance with that system. In some overseas countries, for example, parties married without an antenuptial contract are married *out of community* and not, as in South Africa, *in* - *community* of-property. The legal system of the country where the husband is domiciled*.(ie* deemed to be permanently resident) at the time of marriage determines which matrimonial property system applies. This system governs the marriage, even if the spouses for example immigrate to South Africa. - Immovable property acquired by a spouse married in community of property must be registered in the name of the husband and the wife, unless the husband and wife are partners in a business and registration takes place only in the name of the partnership. Immovable property of spouses married *out of community of property* must be registered in the name of the spouse acquiring the property. D As a general rule any member of a close corporation ·may conclude any contract on behalf of the close corporation provided such contract is connected with the corporation\'s business. A member\'s capacity to conclude contracts on behalf of the close corporation may however be restricted in terms of an association agreement *(ie* an agreement. concluded between- the members of the close corporation). Such Partnerships the contract has specifically been authorised to do so by the other partners. A \'condition\' in a contract is a clause which renders the operation and consequences of the contract as a whole dependent on an uncertain future event. The underlying purpose of adding a condition to ·a contract is to ensure that the parties are not bound to the contract should the event referred to in the condition occur (or not occur, as the case may be). The following are common examples: 15. **Suspensive** conditions·· 1. *(Mortgage bond clause)* 2. *Sale of Purch/1.Ser\'s property* 1. The Purchaser is currently the owner of a property at (address) 1. If the Purchaser as seller has not yet signed an agreement of sale in 2. all suspensive conditions contained in the agreement for the sale of the Second Property must be fulfilled by not later than 3. the Purchaser (as seller of the Second Property) must be given a guarantee securing payment of the purchase price (or part thereof) of the Second Property, and a copy of such guarantee must be given to the Seller by not later than·\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\'..; and 4. transfer of the Second Property must be registered in the name of the purchaser of the Second Property with 90 (ninety) days after the date referred to in clause 15.2.1.3. 2. The Purchaser must within 30 (thirty) days after the date stated in clause 15.2.1.3 and (if applicable) the date stated in clause 15.1, whichever is the later, deliver to the Conveyancer a guarantee, issued by a Bank, to secure payment of the balance of the purchase price to the Seller on registration of transfer of the Property in the Purchaser\'s name. 3. The Purchaser and the Seller will co-operate with each other so that transfer of both the Property and the Second Property can take place at the same time, if possible. They authorise their respective conveyancers to take any steps necessary to achieve this purpose. 4. Until the condition referred to in clause 15.2.1.l is fulfilled, the Seller may continue to market the Property through any estate agent, if a sole mandate bas not been granted to the Estate Agent. If. before fulfilment of the said condition, the 5. a copy of the said offer must be delivered to the Purchaser who will then have 48 hours from the time of such delivery to waive in writing all the provisions of clause 15.2; and - - Should a party to a contract subject to a suspensive condition deliberately prevent fulfilment of the condition to avoid being bound by the contract, the condition is deemed to have been fulfilled. The party concerned need not necessarily have acted with a fraudulent motive; all that is required is a deliberate intent to defeat the fulfilment of the condition, whatever the motive. Options and rights of pre-emption Options - An option to let or hire immovable property need not be in writing to be valid. It is nevertheless always advisable to record such options in writing to avoid disputes. Rights of pre-emption should the grantor (owner) wish to sell it. This is also known as a\'. right of first refusal\' or - From a practical point of view, it is always advisable for an estate agent, in the case of a sale, to make a copy of the contract for both parties and one for himself. The original contract or a copy must be forwarded to the conveyancer attending to the transfer of the property. CHAPTER l3 ========== #### Introduction {#introduction-1} Parties and their addresses - of the purchaser and the seller must be inserted. The following principles must be kept in mind in this regard: Description of the property sold - Keep in mind that, when land is sold, all the permanent improvements on the land *(eg* a house, borehole, swim[ming] pool, trees and other garden plants, etc) are included in the sale. Movable items which have been permanently affixed to a house or other building on the land are also included in the sale. Movable accessories which are of permanent service to the immovable property and which are necessary for its effective use or exploitation are included in the sale, unless otherwise agreed - see the discussion in chapter 2. It is again stressed that, to avoid possible disputes between the parties on what is included in a sale, it is always advisable to draw up a separate schedule specifying which items are included in the - see chapter 2. - Unless the parties agree otherwise, the purchase price is payable in a lump sum on transfer of the property to the buyer. If payment of a deposit is specified, the amount must be recorded in the contract, failing which the sale will be null and void. - If the contract requires the purchaser to pay a deposit, the deposit (if handled by an estate agent) must be paid into the estate agent\'s trust account. Except if the parties have agreed otherwise in writing, interest earned on the deposit must be paid by the estate agent to the - Board for payment into the Fidelity Fund. The Board in turn may refund to the estate agent a prescribed portion (currently *50* %) of the interest paid by him. Note that an estate agent is ethically obliged, before he receives a deposit in trust, to disclose to the parties concerned that, unless they agree in writing to whom interest earned on the deposit must be paid, the interest will in terms of the Property Practitioners Act accrue to the Board. 4. **Purchase price and** **guarantees** 1. The purchase price is R................. (in words 1. immediately after the Seller has signed this agreement, the Purchaser must pay R \...\...\...\...\.... (in words 2. the balance of the purchase price must be paid to the Seller against registration of transfer of the Property into the name of the Purchaser; 3. immediately after registration of transfer of the Property into the name of the Purchaser, the Estate Agent/Conveyancer\* must pay : 1. to the Seller the money referred to in clause 4.1.1 above, less the commission due to the Estate Agent in terms of clause 13; and 2. to the Purchaser all the interest which has accrued on such payment. (\*Delete whichever does not apply.) 2. The Purchaser must within \...\...\...\...\...\...\... (in words\...\...\...\...\...\...\...\...\...\...\...\...) days after the fulfilment (or waiver in terms of clause 16.1, as the case may be) of all suspensive conditions contained in this agreement lodge with the Conveyancer a guarantee, issued by a Bank, to secure payment of the balance of the purchase price to the Seller on registration of transfer of the Property into the Purchaser\'s name. i. good cause exists; and ii. the purchaser has, prior to his signature of the agreement of sale, consented in writing in a document executed independently of the agreement of sale, to the early payment; and iii. the document contains an explanation of the implications and financial risks that early payment will have for the purchaser; and iv. the document is signed by both the seller and the purchaser, as well as by the estate agent in question. Occupation and occupational interest - The relevant clause (completed as an example) could read as follows: 7. **Occupation and Occupational interest** 1. The Parties agree that: 2. If occupation of the Property is given to the Purchaser earlier or later than the date of registration of transfer, the party enjoying occupation of the Property while it is registered in the name of the other party, must for the period of such occupation 3. If transfer of the Property is not registered within 60 (sixty) days after the date upon which the Purchaser has taken occupation of the Property and such delay is not due to the fault of the Purchaser and/or the Conveyancer appointed by the Purchaser, the amount payable monthly by the Purchaser with effect from the expiry of the said 60 (sixty) day period until registration of transfer will be either: 1. the amount referred to in clause 7.2; or 2. the amount payable by the Seller monthly on all mortgage bonds registered over the Property as at the date of signature of *this* agreement by the Purchaser, until date of transfer; 4. If occupation of the Property is taken by the Purchaser before registration of transfer the Purchaser may not make any changes or additions to the Property until the date of registration of transfer. If this agreement is cancelled or lapses, the Purchaser must immediately leave the Property and hand it back to the Seller in the same condition as it was when the Purchaser took occupation. The Purchaser will have no claim against the Seller arising out of any changes or additions made to the Property by the Purchaser. 5. The amounts referred to in clauses 7.2 and 7.3 are payable monthly in advance. Should transfer be registered during a month, the Seller must refund to the Purchaser a share of the payment made. Such share will be for the period between the date of registration of transfer and the end of that month. - It is important to note that a voetstoots clause does not exclude a seller\'s liability for defects. if *(i)* he was *aware* of the defect at the time of the conclusion of the contract, and *(ii)* he purposefully failed to disclose this in order to mislead the purchaser. For example, if a seller knows that the cracks in the walls of his house are caused by a defect in the structure of the house\'s foundations, he cannot escape liability by covering up the cracks with wallpaper and then selling the property *voetstoots.* Home builder\'s warranty against defects - Every building contract and sale agreement of a home concluded between a home builder and a housing consumer *(ie* a person who has acquired or is in the process of. acquiring, a home from a home builder) deemed to include a warranty that the home is or will be: b. fit for habitation; and c. constructed in accordance with the National Home Builders Registration Council\'s Technical Requirements and the terms of\' the relevant agreement, read with the plans and specifications attached hereto. - Every building contract and sale agreement of a home concluded between a home builder and a housing consumer is furthermore deemed to include the following warranties: a. The home builder warrants that he will, subject to the limitations and exclusions prescribed by the Minister of Housing, rectify major structural defects in the home caused by the non-compliance with the Council\'s Technical Requirements. The repairs must be done at the cost of the home builder and be carried out upon demand by the housing consumer. The warranty period in this regard is a minimum of *5* years, commencing on the date on which the housing consumer accepted the home from the home builder. Major structural defects must be notified to the home builder by the housing consumer within this period. A \'major structural defect\' means a defect which gives rise to damage of such severity that it affects the structural integrity of a home, and which requires complete or partial rebuilding of the home or extensive repair work to it. b. The home builder warrants that he will rectify non-compliance with or deviation from the terms, plans and specifications of the agreement or any deficiency related to design, workmanship or material used in the construction of the home. The period of this warranty is a minimum of 3 months, calculated from the date on which the housing consumer accepts the home from the home builder. Any defects in this regard must be notified to the home builder within c. The home builder warrants that he will repair roof leaks attributable to workmanship, ·design ·or materials, if a leak occurs within a period set out in the relevant agreement concluded between the parties. The minimum period is 12 months, calculated from the date on which the housing consumer accepts the home from the home builder and any leak must be notified to the builder within that period. - Each warranty referred to above is automatically transferred if the house in question is re-sold within the applicable warranty period. The new owner(s) therefore step into the shoes of the original housing consumer and may enforce the applicable warranty against the builder. - Before marketing a property, an estate agent should always inspect a property thoroughly. If he notices any material defects he must ask the seller whether he will have these repaired in due course. These defects must then be disclosed to every prospective purchaser. If the defect has not been repaired at the time of conclusion of the contract, the nature of the defect must be recorded in the contract and it must be stated specifically which party (seller or purchaser) is liable for the repair thereof. If a defect has been repaired but the seller is not certain whether the problem has been solved permanently (such as in the case where a leaking roof has been fixed but it is not known whether the leak has been sealed permanently), full disclosure must be made to every prospective purchaser. If a contract of sale is concluded, details of the defect must be recorded in writing together with a statement whether or not the seller assumes any further liability in respect of the defect. If the purchaser requires a guarantee that the defect has been properly repaired, a clause to this effect should be included - see the discussion below. - In terms of the code of conduct, an estate agent must convey to every prospective purchaser or lessee of immovable property, in respect of which he has a mandate to sell or let, all · facts concerning the property as are, or should reasonably in the circumstances be, within his personal knowledge, and which are, or would be, material to a prospective purchaser or lessee. Therefore, if an estate agent is aware of a material defect in the property, he *must* disclose this to every prospective purchaser, even if the seller is unaware of the defect or chooses not to disclose it. Failure to do so constitutes conduct deserving of sanction. An estate agent is not obliged, however, to have a structural survey of a property done before he commences marketing the property.) - An estate agent should never make a statement concerning the quality of a property *unless he is absolutely sure that the statement is correct.* For example, if a purchaser asks an estate agent whether the roof of a property is free of leaks, the estate agent should not say \'yes\' unless he is absolutely sure of his facts. Similarly, he should not say to a purchaser that a sw[imming] pool is a gunite construction if in fact it is a fibre glass pool. A buyer can set the contract aside on the grounds of misrepresentation, even if the misrepresentation was not made by the seller personally but by the estate agent instructed by him to sell the property. - When completing the contract documents for the parties, an estate agent should explain to the parties the implications of the voetstoots clause (if the contract contains such a clause). It is important that the seller must understand that, if he is aware of material defects in his property, he cannot cover up the defects and use an estate agent to sell the defective property to an innocent purchaser. On the other hand, if the contract does contain a voetstoots clause, the purchaser must appreciate that he cannot hold the seller liable for defects of which the seller was unaware at the time of sale. Risk Property could be damaged or destroyed before the buyer has taken transfer. The question then arises whether the seller or the buyer bears the loss. Most standard form contract documents used by estate agents contain clauses (usually referred to as the \'risk\'-clause) COOLING-OFF RIGHT - the purchase price of the property, or the price offered for the property by the purchaser, exceeds R250 000 or such higher amount as may be prescribed from time to time\' - the purchaser is a trust or a person other than a natural person (for example a company or close corporation); - the purchaser has purchased the land at a publicly advertised auction; - the seller and purchaser concerned have previously entered into a sale agreement of the property on substantially the same terms; - the purchaser has reserved the right in terms of the relevant sale agreement or offer to nominate or appoint another person to take over his rights and obligations as purchaser in terms of the offer or sale agreement in question; or - the purchaser purchased the land by exercise of an option which was open for a period of at least five days. - Subject to what has been said above, a purchaser (or prospective purchaser) of immovable property may within five days after signature by him (or his agent acting on his written authority) of - a. an offer to purchase; or b. a sale agreement, - The five-day period is calculated with the exclusion of the day upon which the offer was made or the sale agreement was concluded, as the case may be, and of any Saturday, Sunday or public holiday. - The written notice to be given by the purchaser is effective only if it a. is signed by the purchaser (or his agent acting on his written authority); b. identifies the offer or sale agreement that is being revoked or terminated, as the case may be; and - If the purchaser has exercised his cooling-off right, every person who received any money from the purchaser in respect of the offer or sale agreement must refund the full amount thereof to the purchaser within ten days of the date on which the cooling-off notice was delivered to the seller or his agent. - If the purchaser has exercised his cooling-off right, no person is entitled to any remuneration payable in respect of the relevant offer or sale agreement. This means that an estate agent is not entitled to commission in respect of a sale agreement which the buyer has terminated in terms of his cooling-off right. - Every sale agreement of a house concluded between a home builder and a purchaser must contain all the material terms of the sale, including the financial obligations of the purchaser. If the house is still to be built, a document specifying the materials to be used in the construction of the home must be attached to the agreement together with the approved building plans. - No financial institution may advance mortgage bond finance to a purchaser to enable - A home builder may not commence the construction of a home falling within any - an electrical contractor registered with the Electrical Contracting Board of South Africa. A. At common law there is no mechanism enabling B to ensure that A·s obligations to - It cannot be over emphasized that an estate agent negotiating an instalment sale contract should discuss the implications of the contract fully with both the seller and the purchaser. In particular, the seller\'s and purchaser\'s rights and duties in terms of the contract should be carefully explained. i. the property is used or intended to be used mainly for *residential purposes;* and ii. the purchase price is payable *(a) in more than* two instalments; and Rights and duties of the seller and purchaser after conclusion of an instalment sale contract The seller\'s position - The seller must furnish the buyer with a copy of the agreement within 30 days after its conclusion. The seller is not entitled to charge for making the copy or to recover postage from the purchaser. - If the property is mortgaged, the seller must furnish the purchaser, within 30 days after conclusion of the contract, with a certificate drawn up by each bondholder in which it is stated what amount the bondholder requires for the discharge of the bond, as well as the rate at which interest will be levied as from the date of the certificate. Should the seller fail to furnish the buyer with this certificate, or if the amount indicated exceeds the amount of the purchase price which the buyer must pay the seller in terms of the contract, the purchaser may cancel the contract within 14 days after receipt of the certificate (or if the seller fails to furnish the certificate, after 30 days of conclusion of the contract). - The seller must, free of charge, furnish the purchaser with a statement of account containing certain prescribed particulars, such as the balance of the purchase price and other costs owing in terms of the contract. The first statement must be furnished not later than 12 months after the date of the contract, and subsequent statements must be furnished within 30 days of the end of each successive period of 12 months following the date of the first statement. - The seller must have the contract *recorded* in the deeds office within 90 days from the date: - Within 30 days of the conclusion of the contract, an intermediary must hand or send to the purchaser by registered post, a certificate furnished by *(a)* the person who sold the land to that intermediary, and *(b)* every other person who sold the land to a prior intermediary. The certificate must indicate the amount owed at the date of the certificate to the person who furnished it, and it must be signed by that person in the presence of two witnesses. If the seller fails. to furnish the required certificate, or if the amount of this certificate exceeds the purchase price which the purchaser must pay the intermediary, the buyer is entitled to cancel the contract. The purchaser\'s position - If the property sold is mortgaged, the purchaser *must forthwith* after conclusion of the contract notify the bondholder of the contract. He must also provide him with his address, change of address and any other particulars concerning the contract which the bondholder may reasonably require. If the property has been sold to a remote purchaser, the latter must forthwith notify the *owner of the land* of the conclusion of the contract. He must also furnish him with his address, change of address, and the name and address of any intermediary who sold the land before the date on which the contract was concluded. - The buyer may, up to three times a year, require any bondholder who holds a mortgage over the property to furnish him with a certificate indicating the amount required for the discharge of the bond and the rate at which interest is to be paid. In this way the purchaser can ascertain whether or not the owner is fulfilling his obligations to the bondholder. - A remote purchaser may, by written notice, require the owner, or any intermediary a. the balance of the purchase price; or b. the amount of the attachment or insolvency costs, any endowment, enhancement or betterment levy or development contribution which may be payable in respect of the property, as well as the balance of any loan secured by a mortgage over the property, - If the buyer is not in a position to take transfer, he will have a claim for damages (usually the amount of the instalments paid by him) against the owner or his insolvent estate. If the contract has been recorded in the deeds office, this claim ranks immediately after that of a ###### D Mortgage bonds registered after conclusion of a contract ###### D Preventing a seller from selling to more than one purchaser ###### 0 The purchaser\'s right to fulfil the obligations of an owner or intermediary a. the loan is arranged for payment of all amounts owed by the purchaser to the a. enforce any provision of the contract to accelerate payment of any instalment of the purchase price or any other penalty stipulation in the contract; b. cancel the contract; or c. claim damages from the purchaser a. the names and addresses of the landlord and tenant; b. the description of the dwelling let; c. the amount of the rental and reasonable escalation (if any); d. if rentals are not paid on a monthly basis, then the frequency of rental payments; e. the amount of the deposit, if any; f. the lease period, or, if there is no lease period mentioned, the notice period requested for termination of the lease; g. the obligations of the landlord and the tenant; and h. any other charges payable by the tenant in addition to the rental. - The respective parties must have the contractual capacity to enter into the contract. If a party does not have the contractual capacity to conclude the lease, his or her name must still be cited as lessor or lessee (as the case may be), together with the identity of the person assisting him or her. In the case of a contract concluded on behalf of a company or close corporation, the name of the company/corporation must be cited in the contract together with the name of the person authorised to conclude the contract on behalf of the company/corporation. In the case of a partnership, the names of the partners or the name of the firm (and the person representing the firm) must be cited. See the discussion in chapter 12. - The rent must be payable in money (cash or cheque), except in a lease relating to rural property, in which case the rent may be a definite quantity or a specific portion of the produce of the leased property. - Rent is normally fixed at a definite sum, such as R500 per month. It could, however, also be expressed as a formula, for example in relation to the floor area of the leased premises (such as R60 per square metre), in which case the exact floor area of the premises must be recorded in the lease. - If a lessee pays the rent by cheque, payment is only affected once the cheque has been paid by the bank. If the bank refuses payment, the lessee has not discharged his obligation to pay the rent. - To secure payment of the rent, a lessor has a preferential right (called a tacit hypothec) over movables brought onto the leased property by the lessee. In certain instances, movables belonging to third parties are also subject to the hypothec. The effect of this is that the lessor can have the movable goods sold in execution if the tenant fails to pay the rent. - The rent must be paid at the place agreed upon. If no agreement has been reached, the common law rule is that payment must be made at the lessor\'s business or residence. (In Gauteng the unfair practices regulations state that unless a tenant is notified otherwise in writing, the rent is payable at the dwelling on the first of each month.) - The landlord may recover unpaid rental after obtaining a Court order or a ruling by a rental housing tribunal. Clauses in lease agreements entitling the landlord to resort to self-help to recover rental are void (for example a clause whereby the lessor reserves the \'right\' to take possession of the lessee\'s furniture, without a Court order, and to store it until the rental is paid). If the rental is not paid, the landlord cannot without a Court order change the locks of doors giving access to the dwelling or disconnect the electricity supply. - The Rental Housing Act contains provisions protecting tenants against *exploitative rentals.* - prevailing economic conditions of supply and demand; and - the need for a realistic return on investment for investors in rental housing. - all electricity (including electricity service charges), water and gas (if any) consumed on the premises; - all refuse removal fees levied on the premises; - all sewerage charges and sanitary fees levied on the premises; - all charges arising out of any telephone service installed on the premises; - any other fees payable in respect of services rendered to the premises during the period of the lease. - It depends on the circumstances of each individual case which clause would best suit the requirements of the parties to the lease. - cause or permit any nuisance upon the premises; - allow pets or animals to damage the premises; - deface, mark, paint or drive nails, hooks or screws into the doors, walls, ceilings or floors of the premises, or place or display advertisement or notices of whatever nature on any part of the premises, without the written consent of the lessor; - interfere in any manner with the existing electrical installation on the premises; - make any alteration or addition to the premises without the lessor\'s written consent; or - keep any pets in or on the premises without the lessor\'s written consent. - property, provided the lessor acts in a reasonable manner. To avoid problems the matter should be specifically dealt with in the lease agreement. a. the lessor has given his written consent to do so; and b. the estate agent in question in fact has a mandate to let the property, or in fact has let the property, as the case may be. Introduction - Surety \'\"\' l.. *r* - Notarial bonds - Mortgage bonds - money to the purchaser on the basis that the purchaser must pass a mortgage bond over his immovable property in favour of the lender. The borrower is thus the grantor of the bond (the mortgagor), and the lender the bondholder (mortgagee). What does it cost to obtain mortgage bond finance? - Mortgage bond clauses in standard form documents used by estate agents vary considerably. and could read as follows: The code of conduct lays down certain specific ethical rules which an estate agent must observe when arranging finance for a purchaser. In terms of the code, no estate agent may i. discriminate against a prospective purchaser of a property on the grounds that such purchaser will not, or is unlikely to, make use of financial assistance made available by any specific person or financial institution and which the estate agent offers to arrange on his behalf; or ii. without good and sufficient cause, directly or indirectly, in any manner whatsoever, solicit, encourage, persuade or influence any party or potential party to a pending or a completed transaction to utilise or refrain from utilising