Chapter 13 PT 2

Question 1

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd:

Answer 1

1) The Supreme Court of Appeal confirmed this and elaborated on the underlying principle - “The point underlying the decision in Lillicrap was that the existence of a contractual relationship enables the parties to regulate their relationship themselves, including provisions as to their
respective remedies”

Question 1

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd:

Answer 1

The court held that it was not desirable as a matter of policy to extend the aquilian action to a breach of a contractual duty to perform professional work with due diligence where the breach has caused pure economic loss

Question 2

Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd

Answer 2

1) Where an outside third party wrongfully interferes in a contractual relationship between the other parties, this will amount to a delict, provided that the requirements are met

Question 3

Exceptio non adimpleti contractus:

Answer 3

1) A self-help remedy for when the performance is reciprocal.

2) An innocent party can refuse to perform until the other party has performed in
full.

3) This remedy (and defence) is aimed at forcing the other party to perform

Question 4

Remedies aimed at keeping the contract alive:

Answer 4

1) Exceptio non adimpleti contractus:

2) Specific performance:

Question 5

Specific performance:

Answer 5

1) A claim requesting the courts to force the other party to comply with their contractual obligations.

2) Note an interdict is a formal court order for specific performance.

Question 6

EXCEPTIO NON ADIMPLETI CONTRACTUS:

Answer 6

1) A defence that can be raised in the case of a reciprocal contract. Where the
performances due on either side are promised in exchange for one another

Question 6

Three types of remedy available to an innocent party after a breach:

Answer 6

1) Remedies aimed at keeping the contract alive.

2) Remedies aimed at cancelling the contract.

3) Remedies aimed at compensating innocent party for loss caused by breach.

Question 7

Why is it considered a defence?

Answer 7

1) Permits a party to withhold their performance.
2) To ward off a claim for such performance.
3) Until the other party has either performed or
4) Tendered proper performance of their obligations under the contract

HOWEVER, proper performance can’t be refused when it is tendered late.

Question 8

Why is it considered a remedy?

Answer 8

Execeptio is, in a sense, a way to claim specific performance.

Question 9

The exceptio non adimpleti contractus requirements:

Answer 9

1) Reciprocity obligations:
2) Sequence of performance:
3) Incomplete performance:

Question 10

Reciprocity obligations

Answer 10

1) The two performances must be reciprocal to each other.

2) BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk

Question 11

Sequence of performance:

Answer 11

The other party must be obliged to perform first, or at least simultaneously, with the party raising the exceptio

Question 12

Incomplete performance:

Answer 12

The exceptio may also be used where a party has performed incompletely

Question 13

Acceptance of part-performance:

Answer 13

1) Received part-performance or defective performance and has started using the
performance (even though they are aware of the defective performane-
2) It strongly indicates that the party has elected to keep the contract alive