Chapter 6

Question 1

FORMALITIES
GR:

Answer 1

1) There are no formalities prescribed for
the formation of a valid contract.

2) Formalities may be imposed by law
2) If parties themselves can agree to impose their own formalities

Question 2

FORMALITIES: IMPOSED BY LAW INCLUDE:

Answer 2

1) Writing,
2) Registration and
3) Notarial execution

Question 3

FORMALITIES IMPOSED BY LAW
EXAMPLES:
Sale, exchange and donation of land

Answer 3

1) S 2(1) of the Alienation of Land Act of 1981

Question 4

Suretyship

Answer 4

1) Writing
2) Signed by or behalf of surety
Non-compliance = Contract is void
3) General Laws Amendment Act

Question 5

Executory donation

Answer 5

1) In writing
2) Signed by donor or on behalf of donar
3) General Laws Amendment Act

Question 6

Remedies for Non-compliance

Answer 6

1) If one party rendered performance = Recover Alienation of Land Act

2) If performance rendered by both parties
Contract valid ab initio

Question 6

Some agreements are not invalid if formalities are not met, but cannot be enforced against third parties, such as:

Answer 6

1) Ante Nuptial Contract= Notarially executed
2) Long-term leases of land = title deed

Question 7

S 12 ECTA: Document or information is in
writing if:

Answer 7

1) Document is in the form of data
message and is accessible

2) S 4 (4) ECTA: Accessible in a manner
usable for subsequent reference

Question 8

SIGNATURE S 13(1)and s 1 ECTA:

Answer 8

1) Signature required by law
2) An advanced electronic signature, Director-General of the Department of
Communications

Question 9

S 13(3) ECTA:

Answer 9

1) Use of appropriately reliable
method to identify party and to indicate his/her approval of the electronic communication.

Question 10

Provisions (ECTA) NOT applicable to:

Answer 10

1) Alienation of Land
2) Agreements for long-term lease of
immovable property in excess of 20 years

Question 11

Provision applicable to:

Answer 11

1) Suretyship.
2) Executory donations. (Except of land).
3) Variation of a contract.

Question 12

FORMALITY REQUIREMENT
INTENTION

Answer 12

1) FACILITATE PROOF(Actions to facilitate) Not a requirement

2) SERVE AS A FORMALITY REQUIREMENT

Question 13

Goldblatt v Fremantle

Answer 13

1) Rebuttable presumption

2) Parties just intended formalities to FACILITATE PROOF

Question 14

NON-VARIATION CLAUSES

Answer 14

1) Prescribes formalities for
variation

Question 15

EG of a Variation Clause

Answer 15

1) No variation of this agreement shall
be of any force or effect unless reduced to
writing and signed by the parties to this
agreement

Question 16

SA Sentrale Ko-operatiewe Graansmaatskappy Bpk v Shifren

Answer 16

1) Non-variation clause not against public policy.
2) Shifren principle re-affirmed in Brisley v
Drotsky

Question 17

Implication of Shifren principle

Answer 17

1) Cannot amend a non-variation clause without complying with what the non-variation clause states

2) For a contract to be varied it must be signed by both parties to the agreement in writing

Question 18

Non-cancellations

Answer 18

1) Prescribe formalities for cancellation of an agreement (Writing and signed)

2) Prescribes the procedure for mutual cancellation of the contract.

Question 19

Impala Distributors v Tanunus Chemical
Manufacturing Co (Pty) Ltd.

Answer 19

For a cancellation clause to be effective, it must be coupled with a non-variation clause

Question 20

Cancelling contracts

Answer 20

1) GR: Parties are free to cancel their contract at any time by mere agreement