Preparing for exam

Morning

You may find the following link interesting in preparing for the exam:

http://www.equisearch.com/horses_care/farm_ranch/management/eqcontract917/

Remeber list of electives

Please remember to bring along your elective list for next year if you have not given it to Mr Ndlovu.

Exam Exam Exam

Morning all

The exam is upon us and we are all cramming ...

Few notes on the exam:

The scope is chapters 12-16.

The exam consists of firstly one 25 mark question - to be done by all, a second 25 mark question - a choice of 2 questions are given and you choose one. These three questions are taken from chapters 12,13,14,15 ,

The last question consists of 2 parts, firstly you have to draft a contract of sale of movable item. This will be for 25 marks and I will look at format, content and language use. It is important that your contract must comply with all the formal format requirements, these include your headings and ending, use of paragraphs and the numbering of these paragraphs. There must be a logical flow to your contract. You must adhere strictly to the given facts - no additional new facts may be used.

For the second part of this question you need to explain why you used and included certain paragraphs in your contract. This section will be 25 marks and it is advisable to study chapter 16 for this. You need to state the paragraph and why you included that.

Good luck.

semester test

Please be reminded that your test is on Friday 17 September 2010 in DH5 @ 10.30-11.30

Obligations and terms

You must know your obligations and terms.

Can you discuss the ticket cases?What is tactic contracts?

What is implied terms?

Do you know the different conditions you can find in a contract and what their effect are on the contract?

Know the common contractual terms found in a contract.

Obligations and terms

Parties to contract

Is it possible for a person to contract with himself?

What is the difference between parties being liable jointly and being liable jointly and several? What does this mean? What is the practical implication of the difference between jointly and jointly and several?

Can you discuss the contract of agent with special reference to relationship between the principal en agent , principal and third party and agent and third party?

What is a stipulatio alteri? What does the law as stated by the courts state about this? What is unclear in the law as stated by the courts in regards to thix?

Possibility and certainty

In considering this chapter think of the following questions:-

When will an impossibility prevent the creation of a contractual obligation?

Can you name the different types of impossibilities and due you know when each one will exclude the contractual obligation?

Is there any exceptional cases where there will be liability despite impossibility?

Illegal contracts

In considering the illegal contract think of the following questions that needs to be answered:-

What is public interest ?

What is public policy?

In which ways can a contract be void due to illegality - conclution, reason and preformance.

What is a pactum de quota litis and how does the attorneys overcome this problem?

When will a gambling contract be void, when will it be legal, when will it be illegal, but valid and unenforceble, in terms of the Gambling act?

What is the Ex Turpi rule?

What is par delictum rule?

What is a restraint of trade contract? How will it be enforced? What is the Basson Test?

urgent remember cv's

Please remeber to give Mr Ndlovu your cv's for friday's meeting with law firms and career day.

few more questions to consider

Why is it important to determine the time and place of contracting?

Describe some of the communications that would generally not be regarded as constituting an offer?

Indicate if an offer has been made :-

¨ A statement of willingness to sell certain farms accompanied by a referral to the seller ‘s agent for further details.

¨ S writes a letter to G asking if G will sell his laptop to S for R5000.00. G replies that he will sell his laptop to G but for R5 500.00.

¨ X request information from Y about whether Y will sell his TV to X for about R1000. Y indicates that his TV is worth R2500.

¨ In a moment of happiness F hugs J and tells J he will buy him a watch.

Critically discuss whether silence can ever be regarded as an acceptance?

True or False

¨ A call for tenders constitutes an offer.

¨ If a fixed time is set for acceptance of an offer and the offer is accepted outside of this time, it will not result in a contract.

¨ If X makes an offer to Z to by his car for R10000.00 and Z offers to buy it for R5000.00 instead and X refuses, then Z can still accept the offer to buy it for R10000.00 at a later stage.

¨ If X makes an offer to Z, then A may accept the offer if A is satisfied and in agreement with X’s terms and conditions.

What is the effect of non-compliance with the requirements of section 2(1) of the Alienation of Land Act?

Dikgang, who suffers from severe mental disability, sells the stamp collection his father left him to Jonas. Jonas, who had just met Dikgang that afternoon, has no idea of Dikgang’s illness. Is the contract valid? What would the remedies be available in respect of this contract to Jonas?

Describe the terms ‘contract assertor’ and ‘contract denier.’ Include in your answer a definition of the iustus error approach and the reliance theory.

QUESTIONS TO CONSIDER

Know the meanings of the terms contract assertor and contract denier.

Know and understand iustus error

Distinguish between a unilateral mistake, a mutual mistake and a common mistake.

X wants to buy Daisy the milk cow, which belongs to Y. He makes Y an offer of R1000 for his milk cow, thinking Y only own one cow. Y, who owns two cows thought X meant his cow Bella and accepts the offer.

Did X and Y enter into a valid contract? What is the reason for your answer?

Would your answer be different if X wanted to buy any cow?

What is a relevant mistake and what is an irrelevant mistake? What is the relevance of such difference?

Do you know the differences between the different types of mistakes and can you identify them.

What is the effect of a unilateral mistake caused by the other party and what is the importance of the distinction between this and a mistake, which arises from a misrepresentation

Indicate if the following statements would amount to a misrepresentation:

1. X, a car salesman tells Y that this is the best car in the world.

2. X, a car salesman tells Y that the car, in his opinion is the best in that range.

3. X, a car salesman tells Y that the seats in his new car will be leather, when Y goes to collect his new car he discovers that the seats are not leather and X informs him that he would have to pay extra for leather seats.

Can a misrepresentation be made by silence?

What is the remedies available to the aggrieved party in each of the following cases:

¨ Innocent misrepresentation

¨ Negligent misrepresentation

¨ Fraudulent misrepresentation

Define a dicta et promissa and indicate what would the remedies be for a dicta et promissa.

What is the significance of the decision in Bayer South Africa (Pty) Ltd v Frost 1991 SA 559 `(A) with regard to damages?

Critically discuss the extent of the intent with which a misrepresentation must be made in order to justify the innocent party in rescinding the contract and claiming damages.

What is the difference between undue influence and duress?

Fully discuss the contractual capacity of minors.

What is restitution and when will it apply

In final preparation for your test...

Ponder over the following questions:

1. X made an offer to Y on 1 February. On 12 February Y writes a letter to X stating that he accepted the offer. Y mails the letter on 18 February. The letter is delivered to X’s mailbox on 23 February. X reads the letter on 26 February.

if we apply the different theories of when and where an offer is accepted, when and where was the contract concluded in terms of each theory?

In South African law, when and where will the offer be accepted?

would it make a difference if X made the offer in writing?

2. On 15 March Andy bumps into Bryan whilst on holiday in the Cape and offers to sell his computer to him for R10 000 On 18 March Bryan writes a letter of acceptance and faxes it from Cape Town to Andy's home in Johannesburg. Andy sees the fax whe he returns from his holiday on 20 March.
Determine the time and place of the formation of the contract if :
Andy does not stipulate a method of acceptance
Andy instructs him to fax a letter to his home if he wants to accept the offer.

3.If an offer is made telephonically and the acceptance is posted will the expedition theory apply. Why?

4. Compare the different pacta de Contrahendo with one another.

5.B has an option to purchase A's car for R25000 before Monday 12pm. On Saterday, A sells his car to C for R30 000. Explain the consequence of A's actions.

can B still exercise his right of the option and purchase the car?

what if A transfers ownership of the car to C on Saterday?

Does it make a difference if C was aware of B's right of option at the timeof the sale?

6. Amani, Betty and Chris have a lift club for driving to the university every morning and back in the afternoon. On Monday afternoon, when Betty's car refused to start for the 7th time this month se gave it a good kick and asked her friends " Anyone wants to give me R5 for this wreck?" Immediatly Chris responded by taking out R5 from his pocket and handing it to Betty. Has Betty sold her car?

7.when is an offer viod because it is to vague?

8.What is an offer to the public? When is it an advertisement to do business?

WAYS TO ACCEPT THE OFFER

THE OFFER AND ACCEPTANCE

THE PURPOSE OF KNOWING WHEN AND WHERE A CONTRACT IS FORMED

If a contract is an agreement that creates legal obligations for the parties, that is binding in law, then it is very important to know

· was there a contract

· when was it entered into

· where was it entered into

· what was the content of the contract

The answers to each one of these questions will have one or more effect on how we will handle our client’s claim / defense in civil court.

· If there was no contract – we will not have a claim at all (how do I prove that there was / was not a contract)

· When was the contract entered into – the date will determine prescription, delivery and many other practical implications to the contract. (prescription – no claim)

· Where – this will determine jurisdiction (can I sue in this court or not)

· The content of a contract will form the basis of my claim / defense

REMEMBER :

A CONTRACT MUST ALWAYS BE A VALID CONTRACT MEANING:-

· There must be consensus

· The parties must have contractual capacity

· The formalities must be met if any

· It must be legal

· It must be possible

· It must have certainty

Forming of a contract

A contract is normally formed by way of an offer and an acceptance.

Links to articles on consumer contracts

http://products.jutalaw.co.za/nxt/gateway.dll/jelj/tsar/2/3/4/6/7?f=templates$fn=default.htm

http://products.jutalaw.co.za/nxt/gateway.dll/jelj/stelllr/2/57/88/90/94?f=templates$fn=default.htm

ASSIGNMENT 1:

You are to work in groups of 2-4 students (not on your own), discussing and debating, from a critical point of view, a consumer contract between Eskom and the consumers, in light of the cornerstones of a contract namely :
· Freedom of contract
· Sanctity of contract
· Good faith
· Privity of contract
Your argument must be written down and ready to be handed in / argued on Thursday 25th February during class. All members of the group’s names and student numbers must be on your assignment and a mere copy of the info in your handbook is not acceptable.


NOTES ON CLASS 18 FEBRUARY
We looked at the role of the theories of contract and how it will be used in a practical manner in court.

Course outline

Here is your course outline. I omitted the funky looking title page due to issues beyond my capabilities.

COURSE OUTLINE : LAW OF CONTRACT A

1. INTRODUCTION

Welcome as learners, to law of contracts. We would like to invite you to use the lecturer as facilitator to develop your knowledge in this subject to the maximum. In order to attain success in this subject, your own contribution is important. It is important that you realize that it is your responsibility to prepare for classes and to initiate class discussions. If your attitude towards your study is correct, success will inevitably await you in your future career but always remember that success will only come with hours and hours of very hard work.

The general purpose of this instructional offering is to familiarize the learner with law of contracts terms and concepts. While the learner is “downloading” the theory, practical application will be facilitated through the completion of homework, assignments, class discussions and self-study “assessment type” questions, mostly in the form of case studies.

Please note that this course is directly linked to and goes with Law of Contracts B where the student will look at the content and operation of contracts, breach of contracts, cessions, termination and drafting of a contract.

Your lecturer for this module is :

Mrs T Oosthuizen

Office number 313

Email Toosthui@pan.uzulu.ac.za

Tel 035 9026191

2. PURPOSE OF THE PROGRAMME

Law of Contract is a core subject within the curriculum for the LLB program. The LLB Degree will give you entry into the many fields open to a legal practitioner, where you can be in either private practise or employed by one of the many state departments. Both private and public practitioners use contracts. You will use it extensively if you follow a career in law, be it an attorney, advocate or legal adviser.

The purpose of the course is to provide insight into the nature and function of the law of contract in South Africa. More particularly:

· To provide the students with an understanding of the historical development of the uniquely South African law of contract from its Roman, Roman-Dutch and English roots.

· To provide the students with a thorough understanding of the essential elements of a valid contract in South African law.

· To assist students in being able to identify and solve authentic legal problems with regard to the negotiation and creation of contracts.

· To familiarise students with legal concepts and terminology commonly encountered in the law of contract.

· To assist students in extracting principles from law reports and other source material.

3. PURPOSE OF THE LEARNING GUIDE

This learning guide serves as an instrument of preparation for the learner. It enables you to plan your studies and to follow the completion of the curriculum framework. Because the law of contract is a practical subject, theory is explained and then practical problems must be solved in the form of case studies. You must study the theory beforehand; this will help you complete the theory sections quicker. More time can then be spent on the practical work.

The content of this learning guide must not be regarded as complete. The accumulation of knowledge and insight, as well as the achievement of specific goals, is the learner’s primary responsibility. The learning process will be facilitated within the academic framework with the learning outcomes. The learner should therefore know which learning outcomes must be achieved after each session and what the learner will have to give account of at the end of the module.

ASSUMPTIONS OF PRIOR LEARNING

When entering the course, students need to be able to:

· Be capable of writing and communicating in coherent English.

· Know how and where to access resources such as textbooks, law reports and statutes in the Law Library.

· Have a working knowledge of basic legal concepts and terminology. Be capable of independent learning.

· Read, analyze and extract principles from law reports and other source material.

· Understand the system of judicial precedent, and the important role precedent plays in private law.

WHILE the utmost care was taken during the compilation of this learning guide, it remains subject to change.

4. SYLLABI

The content of the instructional offering is summarized as follows:

· The nature and basis of contracts.

· Formations of contract.

- Offer and Acceptance

- Mistake / Absence of consent

- Improperly obtained consensus

· Requirements of a valid contract

- Contractual capacity

- Formalities

- Legality

- Possibility and certainty

4.2. LEARNING OUTCOMES

After working through and studying this module the learner should be able to:

· Explain the nature and basis of law of contracts;

· Explain and understand the principles of the formation of a contract;

· Understand and explain the requirements for a valid contract;

· Show an in-depth understanding of the principles that underlie the law of contract;

· Evaluate the laws governing law of contracts;

· Apply the knowledge gained during the course to solve practical problems.

4.3. CRITICAL CROSS-FIELD LEARNING OUTCOMES

Learners must demonstrate the ability to:

· Identify and solve problems and make decisions using critical and creative thinking (problem-solving skills).

· Work effectively with others as members of a team, group organization and community (team-ship).

· Organize and manage themselves and their activities responsibly and effectively (self-responsibility skills).

· Collect, analyze, organize and critically evaluate information (information processing/research skills).

· Communicate effectively using visual, symbolic and/or language skills in various modes (communication skills)

5. LITERATURE

5.1 PRESCRIBED LITERATURE

HUTCHINSON ET AL, THE LAW OF CONTRACTS, Oxford South Africa. 2009.

Oxford – Advanced learners dictionary

Please note that the above is the prescribed books for this module and must be used. Last year’s book is not sufficient.

5.2. ADDITIONAL READING

In order to assist your preparation for lectures, a course outline listing the core readings is provided. However, it will be in your own interests to read more widely than the readings listed. You will find the leading judgments on aspects of law of contract in the relevant Law Reports, articles and other books, which may be accessed in the Law Library, both in paper and electronic form.

5.3. COPYRIGHT AND PLAGIARISM

If you should make any copies of the prescribed textbook, you may be found guilty of a criminal offense and a fine or imprisonment may be imposed. The Faculty does not take any responsibility in this regard.

If copies of the textbook must be made, written permission must be obtained from the publishers of the book.

6. assessment

The assessment criteria will arise from, and be linked to, the intended outcomes. Due to the practical nature of the course content, the summative assessment will primarily take the form of practical case studies but will also include a component of theory questions. You will be informed about the necessary exam technique during the course of the module. This means that you will be told what knowledge, skill and attitudes need to be acquired and developed in order to achieve the prescribed outcomes.

When preparing for assessments, you must ensure that you will be able to meet all the outcomes and assessment criteria as stated in each learning unit.

6.1. FORMATIVE ASSESSMENT

Formative Assessment takes place during the process of teaching and learning for the purpose of assessing the learners’ progress in “downloading the theory”. Formative Assessment will be in the form of formal tests and assignments given by your lecturer. Formative tests and assignments will account for 50 % of your final mark. Any test missed will count as a zero unless a valid medical certificate or reason is handed to your lecturer as soon as possible.

6.2 SUMMATIVE ASSESSMENT (FINAL EXAMINATION)

Summative assessment is undertaken to form a judgment about the learners’ achievement of the intended outcomes and is carried out at the end of the learning program. A two hour examination will be written at the end of the module on the work done during the semester. The summative assessment will account for 50 % of your final mark at the end of every semester. A final pass of 50 % is required to pass this module. The relevant assessment criterion for this module is as follows:

Test 1 or Assignment 1	25 %
Test 2 or Assignment 2	25 %
Examination	50 %
Total	100 %

7. GENERAL GUIDELINES

7.1. CLASS ATTENDANCE

Class attendance is of the utmost importance in this subject. The practical application of theory is constantly tutored through a variety of class activities. Important announcements are made during the class and important guidelines are provided on how to start and complete homework and assignments.

STAYING AWAY FROM CLASS IS A GUARANTEED RECIPE FOR FAILURE.

Should you fail to attend class, it will be your responsibility to obtain relevant information and suggested solutions from the elected class representative or fellow learners.

BE PUNCTUAL FOR CLASS – BEING LATE IS A DEFINITE CHARACTERISTIC OF AN IRRESPONSIBLE INDIVIDUAL. ACCESS TO THE VENUE, 5 MINUTES AFTER CLASS HAS STARTED, WILL BE DENIED IN LINE WITH FACULTY POLICY.

7.2. CONSULTATION WITH COURSE FACILITATOR

You may personally consult your course facilitator in his / her office during specified consultation hours. If you need to speak to the course facilitator after consultation hours, an appointment must be made. When a serious problem must be discussed, it is important to arrange for a special appointment beforehand.

No lectures, of any nature, missed because of poor class attendance, will be repeated during consultation hours - that is why classes are arranged. No notes / transparencies will be loaned to learners!

Please note – if you were unable to reach the facilitator, leave a message on a piece of paper with all your details underneath the facilitator’s door or with the department secretary.

An elected student representative may consult with the lecturer with regard to similar “course related” problems shared between various students.

7.3. SCOPE OF WORK FOR ASSESSMENT PURPOSES

You are required to study all the work as set out in this learning guide.

8. ASSESSMENT DATES

Assignments and examination dates will be supplied by the lecturer and can be filled in by the student in the space provided below: Please note that class tests are conducted on a “surprise” basis broadly in line with the time frames below

Assessment:	Date:
Test 1/Assignment 1	Week
Test 2/Assignment 2	Week
Examination

9. DETAILED COURSE OUTLINE:

WEEK 1	Introduction Nature and Basis of Contract	3-41
WEEK 2	The Offer The Acceptance Breaking off Negotiations	47-56 56-63 63-74
WEEK 3	Mistake	81-91
WEEK 4	Mistake	91-109
WEEK5	RECAP AND TEST WEEK	ALL WORK DONE
WEEK 6	Improperly obtained consensus	113-136
WEEK 7	Duress and Undue Influence	136-144
WEEK 8	Contractual Capacity	149-157
WEEK 9	RECAP AND TEST WEEK	ALL WORK
WEEK 10	Formalities	157-173
Week 11	Legality	173
Week 12	Recap and revision	All work

Good luck and best wishes with your study and remember – if you have a problem-ask!