CHAPTER 8

TERM IN CONTRACT =
PROVISION WHICH
IMPOSES, ON
CONTRACTING PARTY, 1
MORE CONTRACTUAL
OBLIGATIONS TO ACT IN
SPECIFIC MANNER /
REFRAIN FROM
PERFOMRING SPECIFIC ACT
/ QUALIFIES CONTRACTUAL
OBLIGAIONS
THUS DEFINES
CONTRACTUAL
OBLIGATIONS TO WHICH
SALES TALK / PARTIES BIND
PUFFING NOT THEMSELVES & WHICH
CONSTITUTE ENFORCE AGAINST EACH
TERM OF OTHER / STIPULATES TIME
CONTRACT WHEN / CIRCUMSTANCES
IN WHICH OBLIGATIONS

TERM
BECOME ENFORCEABLE /
ARE TERMINATED

MUST BE
DISTINGUISED FROM
TERMS -
STATEMENTS IN
STATEMETNS MADE
RESPECT OF
SERIOUSLY WITH
CONTRACT MEAD
INTENTION
WITH NO INTENTION
ENFORCEABLE IN
THAT SHOULD HAVE
LAW
LEGAL
CONSEQUINCES
 EXPRESSLY

DIFFERENT WAYS
OF
INCORPORATING
TERMS INTO
CONTRACT

IMPLICATION TACITLY
 ARTICULTAED
DECLARATIONS OF
INTENT

IF CONSUMER CONTRACT
CONTAINS TERM /
CONDITION MAY AFFECT
ARTICULATED IF
CONSUMER'S RIGHTS /
EXPRESSED IN SO
COULD NOT REASONABLY
MAY WORDS,
BE EXPECTED - SUPPLIER
WHETHER IN
MUST DRAW
WRITING / ORALLY
CONSUMER'S ATTENTION
TO SUCH TERM /
CONDITION

EXPRESS
TEMRS
CONSUMER
CONTRACT MAY USUALLY WHEN
NOT CONTAIN INCLUDING /
UNFAIR, UNJUST / EXCLUDING TERM
UNREASONABLE TO CONTRACT
T&C'S

CONSUMER
PROTECTION ACT
68 OF 2008
PROVISIONS
 NOT EXPRESSED IN
WORDS, BASED ON
PARTIE'S TRUE
INTENTION /
INTENTION AS
IMPUTED BY LAW

TACIT TERM READ IMPUTED TACIT

INTO CONTRACT TERM ONLY READ
ONLY IF REASONABLE INTO CONTRACT IF
& NECESSARY IN BOTH PARTIES
BUSINESS SENSE FOR OVERLOOKED /
PROPER FAILED TO
FUNCTIONING OF
CONTRACT
TACIT ANTICIPATE EVENT
IN QUESTION

TERMS

TACIT TERM
INFERRED BY COURT
BASED ON ASSUMED
FROM EXPRESS
INTENT IN RESPECT
TERMS &
OF ANY SITUATION
SURROUDING
NOT BARGAINED
CIRCUMSTANCES -
FOR
CAN INCLUDE
CUSTOMARY TERMS
 NOT EXPRESSED
IN WORDS

TRADE USAGE = HYBRID

TYPE OF TERM - CAN BE
INFERRED BY COURTS AS CAN BE
TACIT THERM WHERE INCORPORATED
TRADE USAGE KNOWN IN CONTRACT BY
TO BOTH PARTIES / OPERATION OF
IMPLIED TERM IF 1 LAW
PARTY CANNOT PROVE
OTHER PARTY KNEW

IMPLIED CONTRACT
TRADE USAGE:
LONG-ESTABLISHED TERMS CLASSIFIED AS
PARTICULAR
REASONABLE, TYPE - LAW
UNIFORMLY IMPUTES
OBSERVED & CERTAIN
CERTAIN CONSEQUENCES
TO CONTRACT

TERMS CAN BE
IMPLIED BY TRADE TERMS WHICH
USAGE IF UNIVERSAL & ARE IMPLIED BY
WELL-KNOWN THAT LAW =
PARTY'S KNOWLEDGE NATURALIA OF
& INTENTION BE PARTICULAR TYPE
BOUND BY IT CAN BE OF CONTRACT
PRESUMED
 ESSENTIALIA

TERMS
CLASSIFICATION
FOR GUIDELINES
FOR ANALYSIS OF
DIFFERENT TYPES
OF CONTRACTS

INCIDENTALIA NATURALIA
 THOSE TERMS
WHICH ARE
ESSENTIAL FOR
CLASSIFICATION OF
CONTRACT
BELONGING TO
IDENTIFICATION =
PARTICULAR CLASS
IMPORTANT AS
/ CATEGORY OF
CATEGORY OF EXAMPLE: 2
CONTRACT
CONTRACT ESSENTIALIA
DETERMINES CONTRACT OF
NATURALIA OF SALE:
PARTICULAR
CONTRACT

ESSENTIALIA OF
CONTRACT SERVE
(1) SELLER
TO IDENTIFY
BINDS
PARTICULAR
HIMSELF TO
CONTACT AS ESSENTIALIA DELIVER
BELONGING TO
SOMETHING
PARTICULAR CLASS
TO BUYER
/ CATEGORY OF
CONTRACT

(2) BUYER
BINDS HIMSELF
MAY BE
TO PAY SUM OF
CONTRACT OF
MONEY IN
EXCHANGE IF BUYER = BOUND
EXCHANGE FOR
NOT TO PAY PRICE,
ASSET
BUT DELIVER OBJECT
IN EXCHANGE FOR
ASSET - NO
CONTRACT OF SALE -
ESSENTIALIA FOR
CONTRACT OF SALE =
MISSING
 TERMS WHICH LAW
ATTACHES TO EVERY
CONTRACT OF
PARTICULAR CLASS

SOME CASES LAW HELPS DETERMINE

PROHIBITS / LIMITS RIGHTS & DUTIES OF
RIGHT OF PERTIES TO CONTRACTING
EXCL WARRANTY PARTIES & EFFECTS
AGAINST LATENT & CONSEQUENCES
DEFECTS OF CONTRACTS

NATURALIA

NATURALIA OF
MANY CONTRACTS
OPERATION OF KNOWN TO SA LAW
NATURALIA MAY BE BASED ON IDEAS
EXCLUDED BY ORIGINATING IN
AGREEMENT ROMAN LAW,
BETWEEN PARTIES ADPATED BY OUR
COURS, LEGISLATION
& TRADE USAGE
 ONCE PARTIES
AGREED UPON
ESSENTIALIA OF
PARTICULAR TYPE
OF CONTRACT,
SUCH CONTRACT
HAS BEEN
CONCLUDED IN
BARE OUTLINES

NATURALIA MAY
EXAMPLES:
FULFIL FURTER
ALLOWANCE OF
DETAILS, BUT IF
CERTAIN TIME FOR
CONTRACTING PARTIES
PAYING MONEY
DUE / FOR
INCIDENTALIA HAVE SPECIAL
REQUIREMENTS,
PAYMENT THEREOF
ADDITIONAL TERMS
IN INSTALLMENTS
MAY BE INSERTED

THESE ADDITIONAL
TERMS =
INCIDENTALIA
 CONDITION =
PARTICULAR KIND
OF TERM & DOES
NOT INCL ALL
TERMS GENERALLY
FOUND IN CONDITION DESCRIBED AS
CATEGORIES: CONTRACTUAL TERM WHICH
CONTRACTS
POSITIVE & RENDERS OPERATION
NEGATIVE, (COMING INTO EFFECT /
VOUNTARY, TERMINATION OF
INCIDENTAL & CONTRACTUAL OBLIGATIONS)
MIXED, ETC & CONSEQUENCES OF
CONTRACT DEPENDENT ON
OCCURENCE / NON-
OCCURENCE OF SPECIFIED
UNCERTIAN FUTURE EVENT

CONDITIONS
CLASSIFIED
INTO VARIOUS CONDITION
CATEGORIES
EVENT MUST
BE SPECIFIED

EVENT MUST
BE UNCERTAIN
CONDITION
(UNCERTAIN
MUST REFER TO
WHETHER
FUTURE EVENT
CONTRACT EVENT WILL
SUBJECT TO OCCUR)
CONDITION &
CONTRACT
BECOMES
OPERATIVE ONLY
IF CONDITION IS
FULFILLED
 SUSPENSIVE
CONDITION

2
CLASSIFICATIONS
OF CONDITIONS

RESOLUTIVE
CONDITION
 CONTRACTURAL
TERM WHICH
SUSPENDS
OPERATION OF UPON CONCLUSION OF
CONTRACTUAL AGREEMENT
CONTRACT = OBLIGATIONS ITO CONTAINING
TERMINATED CONTRACT UNTIL SUSPENSIVE CONDITION,
CONDITION HAS VALID CONTRACT ARISES
BEEN FULFILLED & BINDING
CONTRACTURAL
IF DISSOVLED, RELATIONSHIP EXITS
NEITHER PARTY FROM WHICH PARTIES
HAS OBLIGATION CANNOT RESILE
TOWARDS THE
OTHER
ALTHOUGH
CONDITION
AL, RIGHTS
& DUTIES
EXIST
SUSPENSIVE
IF OFFEREE ACCEPTS CONDITION
OFFER, CONTRACTUAL
RELATIONSHIP COMES RIGHTS & DUTIES
INTO EXISTENCE - ONLY CAN BE CEDED,
COMES INTO ARE TRANFERABLE
EXISTENCE IF UPON DEATH &
CONDITION IS ARE
FULFILLED ACKNOWLEGED IN
EVENT OF
EXAMPLE: OFFERER INSOLVENCY
MAKES OFFER MAKES
OFFER TO LEASE
OFFEREE'S' CAR CREDITOR CAN
SUBJECT TO CONTRACTURAL PROTECT
CONDITION THAT RIGHTS & DUTIES CONDITIONAL
OFFERER OBTAINS COME INTO RIGHT BY
SALARY INCREASE OPERATION & MEANS OF
WITHIN CERTAIN BECOME INTERDICT
PERIOD OF TIME ENFORCEABLE ONLY
WHEN CONDITION IS
FULFILLED
 CONTRACTUAL TERM
WHICH RENDERS
CONTINUED EXISTENCE IF AGREEMENT
OF CONTRACT CONTAINS
DEPENDENT ON RESOLUTIVE
EXAMPLE: PERSON 1 OCCURRENCE (/NON- CONDITION, BINDING
RENTS FROM PERSON 2 OCCURENCE) OF CONTRACT COMES
UNTIL TRANSFERRED TO SPECIFIED UNCERTAIN INTO EXISTENCE
OTHER CITY. WHEN FUTURE EVENT IMMEDIATELY UPON
TRANSFERRED, PERSON CONCLUSION OF
2 DOES NOT NEED TO CONTRACT
REPAY RENT & CONTRACTUAL
RIGHTS & DUTIES
BECOME
OPERATIVE & ARE
IMMEDIATELY
ENFORCEABLE

WHERE CONTRACT
CREATES CONTINUOUS
OBLIGATIONS & NOT
RESOLUTIVE
SINGLE PERFORMANCE,
COMPLETE RESTITUTION
CONDITION IF CONDITION =
FULFILLED,
DOES NOT OCCUR UPON CONTRACT =
FULFILMENT OF DISSOLVED &
RESOLUTIVE CONDITION CONTRACTUAL
RIGHTS & DUTIES
CEASE TO EXIT

IF PARTIES HAE ALREADY

PERFORMED PRIOR TO
FULFILMENT OF
CONDITION & CONTRACT CONTRACT
= DISSOLVED AFTER COMES INTO
PERFORMANCE HAS BEEN OPERATION
EXAMPLE: PARTY
RENDERED, EACH PARTY WHEN
1 LETS FARM
USUALLY HAS TO RETURN CONCLUED & IS
FROM PARTY 2.
WHATEVER RECEIVED ITO UNDONE BY
PARTIES AGREE
CONTRACT FULFILMENT OF
THAT CONTRACT
WILL DISSOLVE IF CONDITION
PARTY 1 MARRIES
 TIME CLAUSE
MUST BE
DISTINGUISED
FROM
BROUGHT INTO
CONDITION
OPERATION BY
REACHING OF
(2) CERTAIN &
RESOLUTIVE DETERMINED /
ASCERTAINABLE
TIME WHICH
AGREED UPON

DETERMINES

(1) TIME SPECIFIC TIME /

PERIOD
CONTRACT
SUSPENSIVE
CLAUSE BECOME
OPERATIVE /
DISSOLVE

EXACTLY WHEN - MOMENT

CERTAIN / MUST BE
ASCERTAINABLE SPECIFIED

CERTAIN TO
TAKE PLACE
 CONTRACT SUBJECT
TO SUSPENSIVE
TIME CLAUSE IF
DUTY TO PERFORM
POSTPONED UNTIL
DETERMINED /
ASCERTAINABLE
MOMENT ARRIVED

ENFORSEBILITY OF CONTRACT COMES

RIGHTS & DUTIES INTO BEING WHEN
POSTPONED CONCLUDED

SUSPENSIVE
TIME
CLAUSE
OBLIGATIONS INTO
OPERATION &
PARTIES BOUND
ENFORCEABLE
BY OBLIGATION
ONLY WHEN
MOMENT ARRIVES

RENDERING OF
PERFORMANCES
ITO CONTRACT -
POSTPONED UNTIL
MOMENT ARRIVED
/ PERIOD LAPSED
 OBLIGATIONS FROM
CONTRACT HAVE
EFFECT ONLY UNTIL
ARRIVAL OF
CERTAIN MOMENT /
EXPIRY OF CERTAIN
PERIOD

WHEN MOMENT
CONTRACT COMES
ARRIVES
INTO BEING @
OBLIGATIONS -
CONCLUSION
EXTINGUISED
RESOLUTIVE
TIME
CLAUSE

PERFORMANCE - OBLIGATIONS -
IMMEDIATELY IMMEDIATELY
INFORCEABLE OPERATIVE
 RENDERS EXISTENCE OF
CONTRACT DEPENDENT
ON EVENT WHICH HAS
TAKEN PLACE IN PAST /
STATE OF AFFAIRS
WHICH EXISTED/EXISTS
@ TIME OF
CONCLUDING
CONTRACT
WHEN
NO EFFECT /
UNCERTAIN
CONTRACTUAL
WHETER SPECIFIC
OBLIGATIONSS IF
SITUATION
NOT
EXISTS/EXISTED

SUPPOSITION
SUPPOSITION =
ONLY WISH TO
MOTIVE FOR
CONTRACT IF
CONCLUDING
FACT EXISTS /
CONTRACT - MAY
EXISTED
BECOME TERM

SUPPOSITION =
OBLIGATIONS
NOT CONDITION -
COME INTO
DOES NOT RELATE
BEING ONLY IF
TO HAPPENING
SUPPOSITION
OF UNCERTAIN
EXISTS / EXISTED
FUTURE EVENT
 CONTRACTUAL TERM
WHEREBY CONTRACTING
PARTY ACCEPTS
ABSOLUTE
RESPONSIBILITY FOR
PROPER PERFORMANCE
RELATING TO ABSENCE
OF DEFECTS IN
PURCHASES WARRANTO'R PRODUCT ADDITIONAL
ENTITLED TO / SERVICE OBLIGATION -
REMEDIES OF PART OF
ACTIO CONTRACT -
REDHIBITORIA / RESULT OF
ACTIO QUANTI EXPRESS INCL OF
MINORIS WARRANTY

WARRANTY
CERTAIN
INNOCENT PARTY - WARRANTIES -
LEGAL REMEDIES OPERATION OF
LAW

EXAMPLES:
BREACH OF
LATENT DEFECTS,
CONTRACTUAL
EVICTION IN
TERM = BREACH
CONTRACTS OF
OF CONTRACT
SALE
 CONTRACTUAL
TERM - BURDENS
CONTRACTING
PARTY'S RIGHT TO
PERFORMANCE
MADE TO HIM ITO
CONTRACT

PERFORM
TOWARDS 3RD
ORDINARY PARTY, DO
CONTRACTUAL SOMETHIGN /
REMEDIES REFRAIN FROM
DOING
SOMETHING

MODUS
PARTY 1 CLAIM BURDEN ALWAYS
DELIVERY, IF FAILS RELATE
TO PERFORM SOMETHING
MODUS - BREACH HAPPEN IN
OF CONTRACT FUTURE

CONTRACT =
UNCONDITIONAL -
CAN ENFORCE
PERFORMANCE
IMMEDIATELY
 ENTITLES
CONTRACTING
PARTY TO CANCEL
CONTRACT
SUMMARILY IF
OTHER PARTY IN
BREACH OF
CONTRACT

CANCELLATION
CLAUSE

UNNECESSARY TO
SEND LETTER OF
DEMAND / NOTICE
WARNING TO
OTHER PARTY
 DEPENDING ON
TYPE OF BREACH
INNOCENT PARTY
CAN CLAIM
EXECUTION OF
CONTRACT / CANCEL
(2) EXTENT CONTRACT &/
OF PENALTY = CLAIM DAMAGES USUALLY SUM
PREDETERMI OF MONEY
NED

(1) PENALTY
RECOVERABL
E MERELY ON LATE
GROUND OF COMPLETION
DEBTOR'S OF WORK
BREACH OF
CONTRACT
PENALTY
CLAUSE

CREDITOR
CALCULATION
DERIVES
OF DAMAGES
BASIC
IN ADVANCE
BENEFITS:

PENALTY CLAUSE
ENFORCEABLE,
SUBJECT TO
CONVENTION
COURT'S
AL PENALTIES
DESCRETION TO
ACT 15 OF
REDUCE EXTEND OF
1962
PENALTY TO
REASONABLE
AMOUNT
 NO NEED FOR
CREDITOR TO
PROVE DAMAGES

IF CONTRACT DOES ACT PROHIBITS

NOT GIVE CHOICE PENELTY CREDITOR FROM
OF DAMAGES / CLAIMING
PENALTY - CLAUSE DAMAGES &
AUTOMATICALLY STIPULATED
PENALTY CONTINUED... PENALTY

CAN ONLY CLAIM 1

/ OTHER
 3 TYPES OF
CONTRACT /
SCENARIO:

(1) CONTRACTS
GOVERNED BY
IF ACTS IN CONFLICT ,
NATIONAL CREDIT
NATIONAL CREDIT
ACT 34 OF 2005 &
ACT - PREVAIL
CONVENTIONAL
PENALTIES ACT

NATIONAL
CREDIT ACT
& PENALTY
CLAUSES
(2) CONTRACTS
NATIONAL CREDIT
GOVERNED BY
ACT - DIFFERENT
CONVENTIONAL
COST - PENALTY
PENALTIES ACT
CHARGES
ONLY

(3) CONTRACTS
NEITHER
GOVERNED BY
NATIONAL CREDIT
ACT /
CONVENTIONAL
PENALTIES ACT
 RIGHT TO
RESTITUTION
ENTITLES PARTY
WHO CANCELS /
RESCINDS
CONTRACT TO
CLAIM RETURN OF
EVERYTHING
ALREADY
PERFORMED ITO
CONTRACT

IF CLAUSE INCL 1 /
FORFEITURE
CLAUSES SUBJECT
TO REDUCTION @
FORFEITURE BOTH PARTIES LOSE
RIGHT TO
RESTITUTION IN
DISCRETION OF
COURT
CLAUSE CERTAIN
CIRCUMSTANCES

PARTY IN BREACH
FORFEITS
PERFORMANCES
ALREAY RENDERED
 PENALTY
CLAUSE ONLY
BREACH OF
CONTRACT
CANNOT ROUWGELD
CLAIM CLAUSE NOT
SPECIFIC CONNECTED
PERFORMANC TO BREACH OF
E / DAMAGES CONTRACT

DEPOSIT TO BE
PAID - IF ROUWGELD NOT SUBJECT TO
PROVISIONS OF
CANCEL - (ROUWKOOP) CONVENTIONAL
LOOSES
DEPOSIT CLAUSE PENALTIES ACT

PERSON MAY
REFERS TO
WITHDRAW
AMOUNT TO BE
FROM CONTRACT
PAID FOR RIGHT
UPON PAYMENT
TO DISSOLVE
OF CERTAIN SUM
AGREEMENT
OF MONEY
IF REFERS TO
CONTRACT OF
SALE -
ROUWKOOP
CLAUSE
 PROVIDES THAT
AGREEMENT MAY
BE ALTERED ONLY
BY MEANS OF
WRITTEN
AMENDMENT

ENTRENCHMENT
CLAUSE

CONTRACT MAY
NOT BE VARIED BY
ORAL AGREEMENT
EVEN IF PARTIES IN
COMPLETE
AGREEMENT WRT
AMENDMENT