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PVL3702 Law Of Contract
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PVL3702 Law Of Contract
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Course Code: PVL3702
University: University Of South Africa
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Country: South Africa
Question:
Students will be assessed against the assessment criteria and range of application of the following specific learning outcomes:
Identify and understand the role of the general principles of the law of contract and selectedaspects of the law of obligations in current South African law and everyday life.
Demonstrate an understanding of the history and theoretical framework of, and the most pressing and prevalent issues regarding the general principles of the law of contract and selected aspects of the law of obligations.
Apply the principles regarding the law of contract and selected aspects of the law of obligations in practical situations and solve multi-dimensional legal problems associated with the general principles of the law of contract and selected aspects of the law of obligations.
Answer:
Issue
In this case a racehorse was wrongly advertised as belonging to a certain bloodline. The advertisement was accepted by a particular person who was a racehorse breeder. This was first a verbal agreement but a formal contract was drawn up. This written contract had specific exclusionary clause which absolved the seller form any responsibility for representations made in furtherance of the sale (Sisk 2017). This clause would thus exclude liability for the same and would condone the misrepresented bloodline. The issue is to determine the rights of the seller in such a case.
Rule
The applicable rules here can be set out through the judgment delivered by the courts in two cases where the determination of the effect of exclusionary clauses have been discussed and adjudicated upon. The first case to be referred to here is Spindrifter (pty) ltd v Lester donovan (pty) ltd [1986] 1 All SA 384 (A) (Christie and Bradfield 2016). This case clarified that unless an exclusionary clause was not specifically brought to the attention of the persons signing it (in effect agreeing to be bound by it). If the same is not clearly brought to the attention of the shareholders then the same would mean that the exclusionary clause was not adequately incorporated into the terms of the contract. Thus the parties to the contact would not be bound by such a determination. This principle has also been reiterated in another landmark case concerning an appeal. This case was Mercurius Motors v Lopez (149/2007) [2008] ZASCA 22 (Diamond 2013). Here the dispute was regarding a stolen car from a car depot where the owners of the depot had obtained a contract that contained an exclusionary clause absolving them from responsibility. However the same was not printed in a way that would attract the attention of the person signing it. Thus it was held by the court that this exclusionary clause was not incorporated into the framework of the terms of the contract. Thus the exclusionary term would not form a part of the contract and would not bind the parties signing the same. Thus, the term would be void.
Application
Under the given set of facts and circumstances the buyer when signing the contract did not look into the terms specifically. This was because all the terms had already been agreed upon in the oral agreement. This exclusionary clause added by the buyer was a variation of the original terms and thus for it to be binding the seller would be required to bring the same to the attention of the buyer. This has been clarified in the judgment in Spindrifter (pty) ltd v Lester donovan (pty) ltd [1986] 1 All SA 384 (A). Thus, as a result, following the judgment in Mercurius Motors v Lopez (149/2007) [2008] ZASCA 22, the exclusionary clause would be deemed void (McKendrick 2014).
Conclusion
The buyer would not be bound by the exclusionary clause following the above stated judgments and thus the clause would not be a part of the contract.
Reference list
Christie, R.H. and Bradfield, G., 2016. Christie’s Law of Contract in South Africa. LexisNexis.
Diamond, A.S., 2013. Primitive law, past and present. Routledge.
McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).
Sisk, T., 2017. Democratization in South Africa: The elusive social contract (Vol. 4838). Princeton University Press.
Mercurius Motors v Lopez (149/2007) [2008] ZASCA 22.
Spindrifter (pty) ltd v Lester donovan (pty) ltd [1986] 1 All SA 384 (A).
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