Consensus Flashcards
(38 cards)
1
Q
Only conditions where consensus can exist
A
- parties have serious and true intention
- intentions are identical
- where there is creation of a legal obligation with certain legal action
2
Q
Categories of consensus
A
- True consensus
- Assumed consensus
- …By operation of the law
3
Q
Categories of disclosure (of intention)
A
- invitation
- offer
- acceptance
(disclosure usually occurs during negotiations, where intention is made clear)
4
Q
Disclosure: The offer (definition)
A
- a declaration of intent by prospective party
- contains proposal regarding the contract
- mere acceptance bring contract into being
5
Q
Requirements for something to be considered an offer
A
- offeree must be aware of offer
- all stipulations and important elements must be contained in offer
- offer is clear, certain and unambiguous
- no formalities required (unless otherwise stated)
- offer must be made with intention of creating legal obligation
6
Q
Ways an offer may be terminated
A
- Rejection
- – (express, doesn’t accept, counter-offer)
- Revocation
- – (revoked = before acceptance, withdrawal - after offeree is aware of offer)
- Lapse of time
- – (not accepted in specified time period)
- Death of offeror/ offeree before acceptance
- Contractual incapacity
- – (offeror/ offeree loses contractual capacity before contract conclusion)
7
Q
Disclosure: Acceptance
A
- unqualified declaration of intent
- approval without reservations
- with purpose of reaching consensus
8
Q
Requirements for something to be considered a valid acceptance
A
- accepted only by offeree
- clear, certain, unambiguous
- no formalities required unless otherwise stated
- acceptance is identical to terms of offer
- offeree can only accept offer they are aware of
- acceptance only effective once offeror is notified that offer has been accepted
- offeree must have serious intentions
9
Q
Special offers
A
- Public offers
- Auctions
- Options
- Negative offers/options (prohibited by CPA, void)
10
Q
Rules of auction, according to the Consumer Protection Act
A
- if auction is in reserve, a notice in advance must be provided
- the owner and auctioneer cannot bid at auction unless notice has been given in advance (otherwise could be declared fraudulent)
- when goods are sold in lots, each lot is sold separately
- auction is complete only when auctioneer states its completion
11
Q
Naturalia
A
- when consensus is reached expressly or through conduct
- apply automatically
- are not dependent on agreement
12
Q
Essentialia
A
- minimum characteristics of a specific contract
- distinguish specific contract from others
- not validity requirements
13
Q
Incidentalia
A
Terms agreed to by parties amongst themselves for their purposes.
14
Q
Consensus through conduct
A
Declaration of intent made without words or writing but through behaviour (conduct)
15
Q
Express consensus
A
Declaration of intent made by words or through writing
16
Q
Consensus through operation of law
A
Consensus does not have to be reached on terms that are already stipulated in legislation, common law or trade usage.
17
Q
Suspensive vs Resolutive conditions
A
- suspensive condition —> performance can only be claimed after condition is fulfilled
- resolutive condition —> contract remains in existence until the occurrence of an uncertain future event
18
Q
Suspensive vs Resolutive terms
A
- suspensive term —> when some or all performances in contract can only be performed after a (un)certain future event happens
- resolutive term —> contract’s existence depends on a (un)certain events occurrence
19
Q
Assumption and Guarantee
A
- assumption
- –> both parties assume that a certain fact exists and forms part of the contract
- –> refers to something that has happened in the past (differs from term and condition)
- guarantee
- –> contractual undertaking in regards to the presence or absence of legal fact
20
Q
Requirements that must be met before a court can read a missing stipulation into the contract
A
- inclusion of the term must be fair and reasonable
- term must be based on common intention of parties
- only reasonable interpretation of the contract must show that both parties would have still kept the term in the contract had they been aware of its omission.
- the term must be necessary for business efficiency of contract
- clear and unambiguous contents
- inclusion of the term must be desired AND necessary.
21
Q
Effect of Consumer Protection Act (enforcements)
A
- right to plain and understandable language
- unfair, unreasonable or unjust terms
- certain transactions, agreements, terms and conditions that are prohibited
- right to return goods
- right to cancel advanced reservations or orders
22
Q
CPA: Right to plain and understandable language - Factors that determine if consumer could be expected to understand contents of contract.
A
- context, comprehensiveness and consistency of document
- organisation, form and style of document
- vocabulary, usage and sentence structure “ “
- use of any illustrations (incl. headings)
23
Q
CPA: Unfair, unreasonable or unjust terms - Terms and conditions that are considered to be unfair, unreasonable and unjust.
A
- excessively one-sided (in favour of a non-customer)
- so adverse to customer that it is unequitable
- where a consumer relied on false/misleading/deceptive representations
24
Q
CPA: Prohibited transactions, agreements, terms and conditions - Terms and conditions that are seen to be prohibited.
A
pg 34 of actual textbook and pg 43 of pdf
25
Four theories that refer to the four stages of acceptance
- declaration theory
- expedition theory
- reception theory
- information theory
26
Declaration theory
- states contract is concluded when and where the offeree expresses/declares their acceptance
- no application in our law
27
Expedition theory
- states contract is concluded when and where the acceptance of the offeree has been sent out to the offeror
28
Reception theory
- states contract is concluded when and where the offeror receives the offeree's acceptance
29
Information theory
- states that a contract is concluded when and where offeror is informed about the offeree's acceptance
30
Theories: General rule of South African practice
- information theory is applied as general rule in South African law (when offeror is informed of acceptance)
31
Theories: Exceptions to general rule of South African law
1. If old fashioned way of communication is used (excl. telephone and fax) *expedition method* is used provided:
- -> offer AND acceptance made through post
- -> offeror does not prescribe another method of acceptance in offer
- -> general postal services is operational
- -> letter of acceptance bears correct address
2. Ascertainment theory
- -> contract concluded at the place and time acceptance letter was posted
3. Data message
- -> contract concluded when data message has entered information systems where offeror can retrieve and process it
32
Factors that influence consensus
- Error (void)
- Misrepresentation (valid but voidable)
- Duress
- Undue influence
- Commercial bribery
- Right to fair and honest dealing
33
Factors that influence consensus: Error
- error in motive
| - error regarding contents or existence of contract
34
Factors that influence consensus: Misrepresentation
- fraudulent misrepresentation
- innocent misrepresentation
- negligent misrepresentation
35
Factors that influence consensus: Duress
- vis absoluta ---> contracting party become temporarily contractually incapacitated because of fear (null and void)
- vis compulsiva ---> intimidated party enters into contact knowingly to prevent potential danger (valid but voidable) - elements on p. 41 of textbook and p50 of pdf
36
Factors that influence consensus: Undue influence
- valid yet voidable
- requirements:
- -> one party obtained undue influence over other party
- -> influenced weakened powers of resistance and rendered their will compliant
- -> other party used influence in unscrupulous manner
- -> influence induced conclusion of contract
- -> contract must be damaging/detrimental to injured party
37
Factors that influence consensus: Commercial bribery
p. 41 of textbook
38
Right to fair and honest dealing
- if CPA is applicable, must apply
- CPA does not override common law
- p. 42 of textbook and p. 51 in pdf
