SU 2 Chapter 5 - Formalities Flashcards
(20 cards)
What is a formality?
Rules, procedures, or conventions that must be followed in particular siuation.
What are the types of formalities? (3)
Writing
Notarial execution
(notary public has to sign it)
Registration
(In an administration office like deeds office)
What are the sources of formalities? (3)
Required by legislation
Parties themselves
Law of evidence (sometimes required in certain forms)
What does Alienation of land act state?
If land ownership transferred, contract must be in writing, or it is void.
What does General laws amendment act state? (Sec 3) and (Sec 5)
3: Lease or transfer of mineral rights must be notarial executed.
5: Donations must be in writing.
What does national credit act state?
Credit agreement must be in writing.
What does Consumer protection act state?
In all transactions where consumer goods or services are provided in the normal course of
business for value, a written record of the transaction has to be made available to the
consumer. The contract will not be void if the consumer never signed the contract.
What does Leases on land act state?
Generally, lease doesn’t have to be in writing, but long-term lease (10 years) will have to be registered at deeds office to protect lessee.
Which terms must be in writing?
Material terms
What does ECTA state with regards to formalities? (Sec 13) (Sec 18)
13: Electronic signature is valid, and provision made for advanced electronic signature which has been accredited by authorities to avoid fraud.
18: Document has to be notarised by an electronic signature of an authorized person.
What is a variation/amendment?
Formal change made to an existing agreement.
What is an entrenchment or non-variation clause used for?
To protect written contract by agreement against oral and tacit variation. Only written variation may be used.
What is a preliminary agreement?
Document highlighting key terms agreed upon by the parties before they finalize final contract, which states contract will only be valid once certain requirements are met.
What is entrenchment against variation used for?
Contractually protects the non-variation clause against oral variation.
What does the Parol evidence rule state?
External evidence (oral agreements or prior written statements) may not be given to add to, vary, detract the content of an agreement where the parties have incorporated their contract info onto one document in final written contract.
What is the purpose of the Parol evidence rule?
Create certainty for written documents. Legal basis is that parties intend to have their agreement contained in one document.
What is the difference between Parol evidence rule and Contract variations?
Parol rule: Applies to pre-contractual discussions and informal agreements and informal agreements made before the written contract.
Variations: Applies to past-contractual changs, meaning modifications after contract has been signed.
Can you lead evidence on basis of? (3)
Parties didn’t intend to integrate entire agreement into one document.
Parties did not reach agreement.
There was misrepresentation, undue influence or duress.
What is rectification used for?
Correct errors in a contract or legal document.
When is Rectification possible?
Where contract integrated into one document incorrectly due to honest mistake.
Mistake does not influence consensus of parties.
Only possible if valid underlying agreement.
