1988AnnSurvSAfricanL105

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Citation: 1988 Ann. Surv. S. African L. 105 1988

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GENERAL PRINCIPLES OF CONTRACTLOUISE TAGER*

A LEGISLATIONWhen the Harmful Business Practices Bill was published for

comment it drew a barrage of criticism from the business sector. Thebill was seen as a reversal of the Government's deregulationprogramme, as an instrument to curb inflation, as a means tore-introduce price control, and as a cure for a host of other evils. Yetthe bill journeyed rapidly through all three Houses of Parliament,was enacted as the Harmful Business Practices Act 71 of 1988, andcame into operation on I July 1988.The Act repeals the Trade Practices Act 76 of 1976 except forss 1, 9, 10, 13 and 19. The repeal of these sections will come intooperation on a date fixed by the minister by notice in the Gazette. Allnotices, except GN R338 of 15 February 1985 published under theTrade Practices Act, remain in force until amended or withdrawn bythe minister.The Act is based on similar legislation in jurisdictions such as theUnited Kingdom, United States, Israel and Australia. The structureof the Act is similar to that of the Maintenance and Promotion ofCompetition Act 96 of 1979.The Harmful Business Practices Act provides for the establish-ment of a committee of no fewer than four and no more than sevenpersons who are appointed by the Minister of Economic Affairs andTechnology. The functions of the committee include the makingknown of information on current policy in relation to harmfulbusiness practices to serve as general guidelines, and the receipt anddisposal of representations in relation to any matter with which thecommittee may deal in terms of the Act.

The committee may, and on instruction of the minister must,conduct an investigation into any harmful business practice which ithas reason to believe exists or may come into existence. It may alsoinvestigate any business practice in general or in relation to aparticular commodity which is commonly applied for the purposesof or in connection with the creation or maintenance of harmfulbusiness practices. It may also investigate any price increase,reduction of discount or method of fixing prices, in relation to anycommodity.

*BA LLB H Dip Tax Law (Witwatersrand) LLM (Harvard), Advocate of theSupreme Court of South Africa, Professor of Law in the University of the Witwaters-rand, Johannesburg.

HeinOnline -- 1988 Ann. Surv. S. African L. 102 1988


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ANNUAL SURVEY OF SA LA WThe committee in the performance of its functions may deal onlywith business practices as defined. The definition appears to be very

wide, but the business practice must be a harmful business practiceas defined. The practice would be harmful if it directly or indirectlyhas or is likely to have the effect of harming relations betweenbusiness and consumers, if it unreasonably prejudices any consumeror if it, deceives any consumer.The committee upon completion of an investigation reports to theminister. If the minister is of the opinion that a harmful businesspractice exists or may come into existence, and if he is not satisfiedthat the practice is justified in the public interest, he may declare thebusiness practice to be unlawful or issue such other notices as are setout in s 12(1).The Act makes provision for appeals against the minister'sdecision to a special court.

Heavy penalties are prescribed for contraventions of the Act.B CASE LAW

ESSENTIALSTenders in Building Contracts

The legal effect of tenders was discussed in G & L Builders CC vMcCarthy Contractors (Pty) Ltd 1988 (2) SA 243 (SE). The courtpointed out that the seeking of tenders was no more than aninvitation to do business. The tender was the offer that could beaccepted or rejected. Since a tender was an offer, it was not generallynecessary that the lowest or any tender would be accepted, althoughrequests for tenders often drew attention to this fact.A passage from Treitel The Law of Contract6 ed at 12, quoted in thepresent case (at 248A), drew attention to another important aspectof tenders: 'the preparation of a tender may involve very consider-able expense; but the tenderer incurs this at his own risk'.Communication of Acceptance

The general rule governing the formation of an agreement is thatacceptance must be communicated to the mind of the offeror unlessthe offeror, expressly or impliedly, dispenses with the requirement ofnotification and indicates the manner in which acceptance may bemanifested. In McKenzie v Farmers' Co-operative Meat Industries Ltd1922 AD 16 the defendant dispensed with the communication ofacceptance as an essential requirement for the conclusion of thecontract by requesting the plaintiff to allot certain shares to himupon receiving his application. By allotting the shares to the



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GENERAL PRINCIPLES OF CONTRACT 107defendant, the court held, the plaintiff had manifested his accept-ance of the application, and he had done so in the manner indicatedby the defendant.The relevant clause in the draft agreement in Orion Investments(Pvt) Ltd v Ujamaa Investments (Pvt) Ltd & others 1988 (1) SA 583(ZSC) stated: 'This agreement shall only become of force and effectwhen executed by the sellers and by the purchaser and shallthereupon be the exclusive memorial of the agreement of sale andpurchase...'. A memorandum accompanying the draft agreementsaid: 'W e enclose in duplicate agreement duly signed by all sellers.If it is not acceptable, your early return of the agreements would beappreciated' (see at 5861, 587A).

The question for consideration was whether, in terms of the offer,communication of acceptance had been dispensed with and thesigning of the contract by the purchaser constituted acceptance, orwhether acceptance had to be conveyed to the seller in accordancewith the general rule.

Although at first blush it appeared that signature would besufficient to conclude the contract, Dumbutshena CJ held that thesentence 'If it is not acceptable, your early return of the agreementswould be appreciated' indicated that the respondents had beendesirous of being informed early if the offer were rejected. Itenvisaged that the offeree would notify the offeror in his own time inthe event of his accepting the offer. It did not, in the learned ChiefJustice's view, dispense with the need to notify the offeror of theofferee's acceptance. The dictum of Lord Denning MR in RobophoneFacilitiesLtd v Blank [1966] 3 All ER 128 (CA) at 132A was in accordwith this interpretation. 'Signing without notification is notenough.... The plaintiffs would be able to keep the form in theiroffice unsigned, and then play fast and loose as they pleased.'In the result, the court held that there was no agreement becausethe offer had not been accepted.Acceptance: Exercise of an Option

The appeal against the decision of the Orange Free State Provin-cial Division in Ficksburg Transport (Edms) Bpk v Rautenbach en 'n ander1986 (2) SA 88 (0) failed. The decision of the Appellate Division inFicksburg Transport(Edms) Bpk v Rautenbachen 'n ander 1988 (1) SA 318(A), by a majority of three to two, was, with respect, overlyformalistic.A notarial prospecting contract conferred an option on theappellant to purchase certain properties mentioned in the contract.The option had to be exercised before termination of the contract, inwriting, by delivery of a written notice to the owner. On the last day



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108 ANNUAL SURVEY OF SA LAWfor exercising the option the respondent was temporarily absentfrom his farm and the appellant's attorney fixed the letter exercisingthe option to the front door of the respondent's residence.It was contended for the appellant that this was adequate deliveryof the notice because the respondent had chosen this address as hisdomicilium citandi et executandi. The notice was read by therespondent on the following day upon his return to his farm.The court a quo held that the option had not been exercisedtimeously, and gave leave to appeal against this decision.ViviersJA delivered the majority judgment dismissing the appeal.The choice of a domicilium in the contract was relevant only to theservice of a process in legal proceedings; it had not been intended forthe giving of notices required by the contract. The clause could notbe given the dual interpretation contended for by the appellant. Nordid the appellant's claim that it had done everything that couldreasonably be expected to deliver the notice to the respondent findfavour with the majority of the court. No attempt had been made toascertain the whereabouts of the respondent or to arrange a meetingwith him. An inquiry would have revealed that the respondent wasbut a four-hour drive from his farm, and had this been done therewould still have been sufficient time to deliver the notice to him.There was no room for the application of the doctrine of fictionalfulfilment, because no evidence had been led to show that therespondent, by his absence, had deliberately prevented the fulfil-ment of the condition.

The dissenting judgment of Rabie ACJ and Boshoff AJA is to bepreferred. It illustrates that an interpretation in favour of theappellant would have been well within recognized legal principles.The learned Acting Chief Justice did not agree with the view of themajority that the appellant should have taken steps to find therespondent. (Indeed, what if the respondent had been out huntingtigers in Bengal!)

The meaning of the word 'deliver' had been discussed in A to ZBazaars (Pty) Ltd v Ministerof Agriculture 1975 (3) SA 468 (A). Thedocument had to be delivered to the recipient, and delivery of thenotice to a place where the recipient was not himself present was notdelivery. This might be the usual interpretation given to 'delivery',opined Rabie ACJ, but that interpretation was not always or in allcircumstances necessarily its only meaning. The parties could nothave intended that, whatever the circumstances, the option couldnot be exercised unless the written notice was handed personally tothe respondent.An obiter dictum of Ogilvie ThompsonJ in Smeiman v Volkerz 1954(4) SA 170 (C) at 177C supported this opinion: '[A]nd, though Iincline to the view that timeous delivery of a letter of acceptance to



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GENERAL PRINCIPLES OF CONTRACT IUrespondent's correct Wynberg address would have sufficed to createa contract notwithstanding the respondent's temporary absencefrom that address ... it is common cause that Gelb's letter of15 February only reached respondent's Wynberg address subse-quent to 15 February.'

Although the domicilium citandi et executandi clause usuallyapplied to the place where legal processes were to be served, everycontract had to be interpreted to establish whether the partiesintended the clause to have this limited meaning, or whether theyintended it to be used for other notices which were provided for inthe agreement. For instance, the contract under considerationprovided that the prospector could cancel by giving written notice tothe owner. In another clause all moneys were to be paid directly tothe owner at the farm De Villiersdrift, district Fouriesburg. Theomission to state the place for delivery of the notice exercising theoption or for the notice of cancellation, on the one hand, and thespecific mention of the place in the payment clause, on the other,indicated that the intention had been that the domicilium should beused for the contractual notices as well as for service of legalprocesses.REALITY OF CONSENT

MistakeThe principle of law enunciated by Innes CJ in Burger v CentralSouth African Railways 1903 TS 571 that a man, when he signs a

contract, is taken to be bound by the ordinary meaning and effect ofthe words which appear over his signature, has been consistentlyapplied in numerous cases during this century. It is not, however, animmutable principle, as recent cases have shown.In Kempston Hire (Pty) Ltd v Snyman 1988 (4) SA 465 (T) theplaintiff was a company which leased vehicles from time to time toa certain company where the defendant was employed as a clerk.The contract of lease was usually signed by any employee of thecompany who happened to receive the car for hire. The defendantsigned some of these contracts without reading them. He believedthat he was signing a receipt for the delivery of the vehicle when, infact, according to one of the terms, his signature bound him jointlyand severally to the lessor for all the obligations of the company inrespect of the vehicle hired.

When the company went into liquidation the plaintiff sued thedefendant as surety. The magistrate dismissed the claim on theground that the defendant had had no intention to become a partyto the contract and that there had been no consensus.



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ANNUAL SURVEY OF SA LA WOn appeal from the magistrate's decision the plaintiff relied onGeorge v Fairmead (Pty) Ltd 1958 (2) SA 465 (A), where Fagan CJfollowed the so-called sound principle expressed in Burger's case. Butin George's case the learned Chief Justice pointed out that a party

would not be bound by a document he had signed if he had beenmisled either as to the nature of the document or as to its contents.In the present case the court found that the plaintiff had to haveknown that none of the employees would have studied the contractand searched for the clause rendering him jointly and severallyliable.

This was a case of misrepresentation by silence, and the situationwas similar to that in Curtis v Chemical Cleaning & Dyeing Co Ltd[1951] 1All ER 631 (CA), where Denning LJ held that a contractingparty who did not draw the attention of the other party to thecontract to the existence or extent of an exemption clause mightconvey the impression that there was no exemption clause, or thatthe exemption clause was not as wide as it in fact was.Kempston Hire (Pty) Ltd, which followed Du Toit vAtkinson's MotorsBpk 1985 (2) SA 893 (A) (see 1985 Annual Survey 101) clearlyillustrates that our courts have abandoned the pure objective theoryof the early decisions in favour of a more practical, reasonable andsubjective theory of contract.Rectification

The rectification of a written contract is a form of equitable reliefwhich is allowed when the written document does not reflect thecommon intention of the parties to the contract. According toMagwaza v Heenan 1979 (2) SA 1019 (A) a written contract cannot,however, be rectified if ex facie the document the contract does notcomply with the formalities prescribed by statute or is otherwiseunlawful.Seligson AJ in Lazarus v Gorfinkel 1988 (4) SA 123 (C) was notaware of any decided case which dealt with the applicability ofrectification to contracts of suretyship, but he saw no reason forapplying a different rule to such contracts. The plaintiff, Lazarus,instituted action for rectification of a deed of suretyship by thesubstitution of his name for that of the creditor named in the deed.Lazarus claimed that it had been the true intention of the partiesthat he be the creditor and not Norbren Investments CC (a familyconcern managed and controlled by him), and that he had acceptedthe deed of suretyship in the bona fide but mistaken belief that itcorrectly reflected the common intention of the parties to thecontract.The deed of suretyship in the present case complied in all respects



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GENERAL PRINCIPLES OF CONTRACT 111with s 6 of the General Law Amendment Act 50 of 1956. Thecontract was embodied in a written document and was signed by thesurety. Although the contract of suretyship was a bilateral contract,the learned judge pointed out that only the surety's signature andnot that of the creditor was prescribed as a necessary formality.

Unfortunately the plaintiff was unable to discharge the onus ofshowing that on a balance of probabilities the deed did not reflectthe true intention of the parties. He had had no direct dealings withthe defendant, and a third party had arranged for the defendant tosign the deed.It seems that cases involving the rectification of a deed ofsuretyship are not as rare as the previous case suggested.

Ex facie the document the deed of suretyship in Litecor Voltex(Natal) (Pty) Ltd v Jason 1988 (2) SA 78 (D ) complied with theformalities prescribed in s 6 of the General Law Amendment Act.Therefore, held Didcott J, it was capable of rectification. Theproblem, however, was that the defendant had mistakenly beencited in the deed in his capacity as director of the principal debtorcompany, and the document conveyed the impression that he hadbeen authorized by the company to bind the company as surety andco-principal debtor for payment of its own debt. Rectification ofsuch a document, observed the learned judge, would have trans-formed a document which, although valid in form, was in substanceof no force, into one which would become enforceable.The case of Spiller v Lawrence 1976 (1) SA 307 (N ) drew a cleardistinction between contracts which were void for want of compli-ance with essential formalities and those which, although valid inlaw, were invalid for some other reason. Contracts in the formercategory were invalid in form and could not be rectified, whereasthere was no reason to preclude the possibility of rectification of thelatter category, where the contracts were invalid in substance.The relief sought in the present case required the court tosubstitute a surety who was not identified in the deed for the namedsurety. On the authority of Weinerlein v Goch Buildings Ltd 1925 AD282, which permitted rectification by substituting a description ofland for the land described in the agreement, the court in LitecorVoltex (Natal) (Pty) Ltd allowed the rectification.Fraud of a Third Party

The tripartite agreement in Forsyth v Mounsear-Wilson & another1988 (4) SA 627 (W ) embodied terms relating to the different sets ofreciprocal rights and obligations of the buyer of land, the plaintiff,who was the excipient in the present case, the seller of the land, thesecond defendant, and the first defendant, who was the respondent.



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ANNUAL SURVEY OF SA LA WThe terms included the dissolution of certain erstwhile relationshipsand the substitution of certain new ones; it arranged three sets ofbilateral relationships, none of which was wholly independent of theother two.

Prior to the conclusion of the tripartite agreement the seconddefendant had sold, but not delivered, certain land to the firstdefendant, who had in turn resold it at a profit to the plaintiff.After the plaintiff had taken transfer of the land pursuant to thetripartite agreement, he discovered that the first defendant, in theirinitial dealings, had fraudulently induced him to buy the land byrepresenting to him that no road development was planned, whereasa highway had been planned to pass diagonally through the land.The plaintiff then sought to cancel the tripartite agreement, claim-ing damages from the first defendant against retransfer of the land tothe second defendant at the expense of the first defendant.

The first defendant entered tw o interlinked special pleas againstthe plaintiff's claim. The tripartite agreement was the commonsource of several contracts, and the fraud perpetrated by a party toa cancelled earlier agreement could not be relied on by the plaintiffin a contract in which the plaintiff had bought directly from thesecond defendant, and in which sale the first defendant had notparticipated.

The plaintiff, who was the excipient to the special pleas, relied onthe indivisible nature of the contract.The court chose to avoid the question of the divisibility or

otherwise of the contract. The answer to the question, Kriegler Jsaid, was whether there was so close an identity between theparticular relationship tainted by the fraud, and the relationshipsthat were not, that one could say that the latter could not standwithout the former. The second defendant's sale of the landvoetstoots to the excipient was irreconcilable with either of theparties' being entitled to resile from their bargain on the strength ofanything that the respondent had done or not done before thecontract had been concluded. The relationship was 'uncluttered byany historical impedimenta' (at 638D). The multilateral agreement,which was primarily a sale of land between the excipient and thesecond defendant, could not be cancelled on the grounds or in themanner alleged.LEGALITYPactum Successorium

A pactum successorium is basically a contract which has the effectof usurping the testamentary freedom of one contracting party. A



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GENERAL PRINCIPLES OF CONTRACT Iiicontract in which a person promises that he will dispose of his estatein a certain way after his death is a pactum successorium, and assuch is invalid and unenforceable. There are, however, certaincontracts which fall outside the ambit of a pactum successorium, forexample, a contract which vests a right in one party to claim deliveryof the property after the other party's death. This contract bestowsa ius in personam ad rem acquirendam, and is enforceable.The contract in Jubelius v GrieselNO 1988 (2) SA 610 (C) mighthave fallen outside the category of a pactum successorium and beenenforceable had it not contained a condition that the beneficiary'sright to acquire the property depended on the owner's predeceasinghim. The effect of this condition was that vesting could not occuruntil the owner's death.In spite of this, the court, taking into account the relative ages ofthe two parties and their respective states of health, held that, sinceit had been unlikely that the deceased had considered that he wouldoutlive the plaintiff, or that the property still formed part of hisestate, the contract should be upheld. If there was any doubt as tothe correctness of this decision, the learnedjudge said, the maxim utres magis valeat quam pereat required the court to incline in favourof the validity of the contract.

This decision is, to say the least, a very surprising one. It isdifficult to understand the relevance of the reference to the ages orstate of health of the parties. The rationale for not enforcing apactum successorium is clear, and this decision, whatever itsapparent pragmatism, opens the way to fraud and uncertainty.CONDITIONS IN CONTRACTSole Discretion Vested in One Party

The appellant in Kriel vHochstetterHouse (Edms) Bpk 1988 (1) SA220 (T) claimed that a lease was invalid in that it did not provide fora determinable rental. The lease gave the lessor absolute discretionto determine additional levies relating to the use of common spaceand services such as water and electricity. The levies could varyaccording to circumstances and expenses incurred. In the courta quo the respondent conceded that certain clauses were invalid.The court severed the clauses in issue and gave judgment againstthe appellant for the basic rental.On appeal the court held that the clauses giving the respondentthe absolute discretion to determine the additional levies renderedthe lease vague and invalid.

The court then considered whether the invalid clauses could besevered from the valid part of the contract. The fact that the contract



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114 ANNUAL SURVEY OF SA LAWprovided fo r different contributions for different items could be anindication that the parties intended that the vague terms of thecontract could be severed from the rest. If,however, it appeared thatneither party would have entered into the contract had the invalidclauses not been included, this would be an indication that thecontract was not severable.

The invalid terms were an integral part of the contract. It wasclear that the respondent would not have let the premises for thebasic charges only. Nor was it likely that the respondent would haveagreed to permit the appellant to use the common areas free ofcharge. On the other hand, it was unthinkable that the appellantwould have hired an office on the ninth floor of a building unless hehad had the use of the common space as well as the electricity andother conveniences.

In the circumstances the appeal was upheld by the full bench.McCreath J, who delivered the majority judgment, held thatthe invalid clauses could not be severed and the entire contractwas unenforceable. Stegmann J delivered a separate concurringjudgment.Statutory Illegality

Shillings CC v Cronje & others 1988 (2) SA 402 (A) reversed thedecision of the Transvaal Provincial Division reported in Shillings vCronjeen andere 1986 (3) SA 423 (T). On appeal the court held thatthe joint and several obligations assumed by five persons (therespondents) in terms of a lease of property situated in a white grouparea were not necessarily all rendered invalid by virtue of theprovisions of the Group Areas Act 36 of 1966.In the present case the second respondent was an Indian personwho was, in terms of the Act, a person disqualified from owning orleasing property in a white group area. This fact provided him witha personal defence against an action instituted on the contractagainst him. The defence, being purely personal in nature, could notbe relied on by the other respondents, who were all whites.It was pointed out by the court that, although the release of oneof the co-debtors could result in a reduction of the amount of liabilityof the remaining co-debtors to the creditor, it was not necessary topursue the point because the appellant's prayer was simply for adeclaration that the lease was binding on the first, third, fourth andfifth respondents.The conclusion of the court accorded with the rule expressed inMcCullogh v Fernwood Estate Ltd 1920 AD 204 that courts shouldincline to a construction which renders the contract operative ratherthan inoperative. This conclusion was also supported by the



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GENERAL PRINCIPLES OF CONTRACT I II)language used in the contract, which clearly indicated that eachparty had assumed personal liability.

The appeal in Essop v Abdullah 1988 (1) SA 424 (A) against thedecision of Essop v Abdullah 1986 (4) SA 1 1 (C) was unsuccessful.The contract between the appellant and the respondent sought toachieve what was clearly prohibited by the provisions of the GroupAreas Act 36 of 1966, and its predecessor Act 77 of 1957. The

appellant was an Indian person who had persuaded a colouredperson to acquire property on his behalf in a coloured group areacontrary to the provisions of the Act. No permit had been obtainedby the Indian person. The parties agreed that, if the Indian wishedto have the property transferred to another person or to himself if heobtained a permit, the registered owner would do so upon request.The parties then had a disagreement, and the respondent refused totransfer the property when requested to do so.

The court would not consider the agreement between the parties.The contract was illegal in that it continuously contravened the Act,and to uphold it would deprive the relevant section of the Act of itsefficacy because there was no limitation on who might apply for andobtain a permit.While the decision may be correct on a strict interpretation of theAct, it is arguable that the case could have been decided differentlyon the analogous principle applied to gambling contracts involvingagents.

Although wagers are unenforceable contracts, the rule againstunenforceability should not apply to subsidiary or collateral agree-ments entered into by agents. In Dodd vHadley 1905 TS 439 the courtheld that it would be far more immoral to permit an agent to retainthe money won on a bet placed on behalf of his principal than toenter into the original bet.

It is true that wagering contracts are not in themselves illegal orimmoral, whereas the contract in issue was illegal in that itcontravened a statute. But the Group Areas Act creates a technicaloffence, and the contract does not constitute a serious or a common-law crime. To permit the registered holder, who was no more thana nominee of the real purchaser, to deal with the property at will andcontrary to an agreement, it is submitted, amounts to nothing shortof condoning the common-law crime of theft.CESSIONDelectus Personae

The court in G S George Consultants& Investments (Pty) Ltd & othersvDatasys (Pty) Ltd 1988 (3) SA 726 (W), in order to decide whether



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ANNUAL SURVEY OF SA LA Wto grant an interdict against the respondent restraining it fromdisposing of the applicants' shares, had to consider the validity of thecession whereby the respondent had acquired the shares in issue.The shares had been pledged by the applicants to the FirstNational Bank Ltd as security for the individual indebtedness ofeach to the bank. The bank had then ceded all its rights against theapplicants to the respondent. These rights included the paymentof the amount owing, the bank's rights arising out of the deeds ofcession and pledge and out of the pledge of shares made in termsof those deeds.

The respondent instituted action against the applicants, claimingpayment of the debts that had been ceded to it.Before the actions for the recovery of the debts came to trial, therespondent informed the applicants that the pledged shares wouldbe realized unless the ceded debts were paid within 24 hours. Theapplicants immediately applied for an interdict restraining therespondent from disposing of the shares.The court considered separately the validity of the cession of themonetary debt, the cession of the bank's rights in respect of the

contract of cession and pledge and in respect of the cession of sharesdelivered pursuant to such contracts.

When a banker allows a customer to operate a current account,one of the ordinary incidents of the resulting contractual relation-ship is to impose upon the banker an obligation to preserve theconfidentiality of his knowledge of his customer's business. Such aduty of secrecy has been judicially acknowledged in Abrahams vBums1914 CPD 452 at 456 and in CambanisBuildings (Pty) Ltd v Gal 1983(2) SA 128 (NC) at 137E. In the present case there was nosuggestion of any circumstances which might have relieved thebanker of its duty of secrecy to each of the applicants. The elementof confidentiality in the contract was so personal in nature,Stegmann J opined, that it rendered the banker a delectus personaeand, as such, according to the well-established legal principles ofcession, it could not cede its rights against the debtors of customerswithout the debtors' consent.Cession in Securitatem Debiti

A debtor executed two successive deeds of cession in securitatemdebiti in favour of two different creditors. When the second creditor,the appellant in Airco Engineering (Pty) Ltd v EnsorNO 1988 (2) SA367 (N), became aware of the prior cession, it reached an agreementwith the first creditor that it would provide a bank guarantee tocover the facilities granted to the debtor by the first creditor, in



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GENERAL PRINCIPLES OF CONTRACTreturn for which the first creditor would release the debtor from al lobligations under the first deed of cession.

Shortly after this arrangement was concluded the debtor wentinto liquidation and the liquidator, the respondent in the presentcase, contested the validity of the second cession and rights of thesecond creditor to collect the debts covered by the second cession.The respondent obtained a rule nisi in the court a quo againstthe appellant on the basis that at the time of the second cession thedebtor had already ceded all its claims in the first cession.On appeal the appellant contended that the debtor had ceded toit the right to claim re-cession of its claims from the first creditorupon liquidation of the first creditor's claim against the debtor. Italso claimed that the second cession was wide enough to include al lrights of action which might subsequently vest in the cedent.The appellants' alternative argument found favour with the courtand the appeal succeeded. The terms of the second cession werewide enough to embrace all debts which might become due andpayable to the cedent in the future. The words 'all amountspresently and at all times in the future due and payable to us by al lour debtors without exception' had been intended to be read withoutqualification or limitation, and included both present and futuredebtors. Indeed, there were a number of cases which supported theproposition that future rights or even the spes of such rights couldform the basis of a valid cession.The terms of the deed of cession in securitatem debiti in Sasfin(Pry) Ltd v Beukes; Suid-Afrikaanse Vervoerdienste v Sasfin (Pty) Ltd 1988(1) SA 626 (W ) bound the cedent in aeternitatem to the cession ofall his future income. The cession was declared ultra vires on thegrounds that it was contrary to public policy.The court observed that the doctrine of public policy was invokedonly in clear cases in which the harm to the public was substantiallyincontestable. Public policy had been described as a high horse tomount and a difficult one to ride when it had been mounted.Frequently, it had been said, the high horse attempted to stampedein opposite directions at the same time. Nevertheless, if the occasioncalled for it, a court had to do its duty and test the contract inquestion.There was no possibility that the deed of cession could be severedas contended by the plaintiff. A contract could be severed if theseveral portions were independent of one another, and could besevered without the severence affecting the meaning of the parts thatremained. In the present case the intention to afford security to thecessionary in the form of all future income earned by the cedent atall times, notwithstanding any intermediate discharge or settlementof the cedent's obligations to the creditors or the cessation of the



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ANNUAL SURVEY OF SA LAWdebtor/creditor relationship between them at any time, went to thevery essence of the obligation. The terms sought to be severed wereindivisible and formed the main purport and substance of thecontract.TERMINATION OF THE CONTRACTPerformance

Payment: Cheque Sent Through the MailIn the performance of his contractual obligations it is the debtor's

duty to seek out his creditor. If the debtor performs his obligation topay by paying by cheque, his payment is conditional and becomesfinal only when the cheque is honoured. The debtor bears the risk ofloss or misappropriation of the cheque in the interim. Thus if thedebtor chooses to send the cheque through the post and the chequeis lost or stolen, any loss sustained on the cheque would be his.The risk of loss shifts to the creditor if the creditor requests orstipulates expressly in the agreement or by implication at a laterstage that payment may be made through the post. The reason isthat the creditor must assume the risks of any inadequacies in themethod of performance selected by him. The debtor has, however, toobey any instructions imposed by the creditor. For instance, thecreditor may require him to post the cheque to a particular address.The court in Mannesmann Demag (Pty) Ltd v Romatex Ltd 1988 (4)SA 383 (D ) considered whether in the absence of an expressdirection from the creditor it could be said that it was implied thatthe debtor had an additional obligation to draw the cheque in sucha way that no person other than the creditor could obtain paymenton it. NienaberJ came to the conclusion that the past practice of theparties concerned had to be taken as a measure of how reasonablebusinessmen drew their cheques. According to the evidence, neitherof the parties had ever indorsed his cheque 'not transferable'; theyhad marked their cheques 'not negotiable, account payee only', andthe learned judge was not persuaded that there was, room forimplying a term that the cheques had to be drawn in the mannercontended for by the plaintiff.In the circumstances, it was held that the risk of loss of the chequefell on the plaintiff and that the defendant had performed inaccordance with the contract.Payment in Foreign Currency

Although Nestadt J, as he was then, in Voest Alpine IntertradingGesellschaft MBH vBurwill & Co SA (Pty) Ltd 1985 (2) SA 149 (W),held that the court was obliged to give judgment only in rand and



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GENERAL PRINCIPLES OF CONTRACTnot in foreign currency, the learned judge said that he was not ableto find the source of this rule (see 1985 Annual Survey 119).The source of the rule, it seems, according to LeonJ in ElginBrown& Hamer (Pty) Ltd vDampskibsselskabet Torm Ltd 1988 (4) SA 671 (N),is probably 'supposed practical convenience' (at 673F) such as toavert possible problems which may arise on execution. This was amatter which the court would have to bear in mind in the exerciseof its discretion, but, the learned judge held, there was no absolutebar to its giving an order in foreign currency.The decision is to be welcomed particularly in the currenteconomic climate of fluctuating exchange rates and weak rand.When a loss is suffered in a foreign currency, the plaintiff might notrecover his actual loss if damages are not assessed and quantified inthat currency.Repudiation

The conduct by one of the contracting parties in the performanceof his contractual obligations may appear to the other party to be arepudiation of the contract. If the latter so interprets this conductincorrectly and cancels the contract, he might find that his act ofcancellation amounts to a repudiation which justifies the otherparty's right to cancel and sue him for breach.

This is what occurred in Culverwell v Brown 1988 (2) SA 468 (C).The appellant purchased certain property from the respondent. Theappellant failed to pay the full amount of the deposit, and therespondent issued summons against the appellant. The appellantthen claimed that the respondent had entered into a new lease ofpart of the property. This amounted to a material breach of theagreement and constituted a repudiation entitling him to cancel theagreement.The respondent denied that he had breached the agreement andclaimed that the appellant had repudiated, which repudiation hehad accepted.The court found that, by entering into a new lease which extendedbeyond the period of the existing lease, the respondent had imposeda greater restriction on the appellant's right to obtain vacantpossession and, in this respect, there had been a breach of contract.The breach had not, however, amounted to a repudiation of thecontract. The respondent's conduct had not exhibited a deliberateand unequivocal intention no longer to be bound by the contract.The appellant's purported cancellation had not been justified,since the breach complained of had not been a breach of a materialterm. In the circumstances, the respondent had been entitled toregard the appellant's cancellation as a repudiation which gave him



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ANNUAL SURVEY OF SA LA Wan election either to disregard it and continue to seek specificperformance or to accept it and terminate the contract. Therespondent had exercised his election when he had sold the propertyto a third party. The fact that the respondent had sold the propertybefore conveying his acceptance of the repudiation to the appellantcould not be said to amount to a repudiation of the contract by therespondent.

In making the award of damages for breach of contract the courtseeks to put the aggrieved party in the position he would have beenin had the contract been fully performed. In a contract of sale themarket value of the merx has to be established for the purpose ofdetermining the amount of damages. The aggrieved party is usuallygranted the adverse difference between the purchase price and themarket value of the merx.

The cases differ as to what is the relevant time fo r determiningthe market value. Is it the date of repudiation, or is it the date whenthe repudiation is accepted? The court was of the opinion thatthe relevant date was the date of acceptance of the repudiation. Thedate of repudiation was not an appropriate date to fix the damages.Repudiation per se did not bring the contract to an end, because theother party was not obliged to accept the repudiation immediatelyor at all. He had an election, and he might take a reasonable time todecide whether to accept the repudiation. Only when the date ofcancellation had been crystallized could any question of damagesarise.

The court included in the award of damages fo r breach theinterest on the purchase price that the party would have receivedhad the contract been performed. Since the agent's commission wasno longer payable, the court deducted from the award of damagesthe commission that the plaintiff would have had to pay had thecontract been performed.Prescription

In an action fo r damages in Brandv Williams 1988 (3) SA 908 (C)the defendant claimed that the debt had prescribed. The plaintiffwas a minor at the time that the cause of action arose, and, in termsof s 13 of the Prescription Act 68 of 1969, the running of prescriptionagainst a minor is not completed until expiry of on e year from thedate upon which the minor becomes a major. It was argued by thedefendant that, by virtue of s 12(3) of the Prescription Act, whichprovides that a debt will not be deemed to be due until the creditorhas knowledge of the identity of the debtor and of the facts fromwhich the debt arises, the knowledge of the creditor's guardian of the



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GENERAL PRINCIPLES OF CONTRACTidentity of the debtor and the facts from which the debt arose couldbe imputed to the creditor (the plaintiff).

The court distinguished the case when action is instituted whilethe creditor is still a minor from that when the action is instituted bya creditor who became a major after his cause of action arose. In theformer case s 13 applied, and it would be of no consequence whenthe guardian of the minor acquired knowledge of the debtor'sidentity.

There were two conflicting decisions governing the latter situ-ation, Jacobs v Kegopotsimang 1937 GWL 43 and Greyling v Adminis-trator,Natal 1966 (2) SA 684 (D). Scott AJ, in the present case,declined to follow Jacobs's case. The assistance of the guardian wasnecessary to give the minor locus standi, but the claim was that ofthe minor, and therefore it was the knowledge of the minor and notthat of the guardian which was relevant.

There was nothing in s 12(3) to justify a construction whichnecessarily imputed the knowledge acquired by the guardian to theminor. To construe s 12(3) in this way to extend the meaning ofcreditor to include both the creditor and his guardian when thecreditor was a minor would be contrary to the spirit of s 13, whichdelayed the running of prescription against a minor.Moreover, s 12(3) was aimed at preventing prescription fromrunning against a creditor who, by reason of his lack of knowledgeand the inability to acquire it by the exercise of reasonable care, wasunable to institute action.Mati v Minister ofJustice, Police and Prisons, Ciskei 1988 (3) SA 750(Ck) dealt with the period of prescription in terms of s 48(l)(b) ofthe Police Act 32 of 1983 (Ck).Exceptio Doli Generalis: Obituary

Alas! The Appellate Division in Bank of Lisbon and South Africa Ltdv De Ornelas & another 1988 (3) SA 580 (A) has not only sounded thedeath knell, but has, once and for all, buried the exceptio doligeneralis and the replicatio doli generalis as a superfluous, defunctanachronism. Jansen JA was the only dissenting voice in thismonumental decision of five Appellate Division judges, comprisingRabie ACJ and Jansen, Joubert, Hefer and GrosskopfJJA.The majority judgment, delivered by Joubert JA, traversed theorigin, development, scope and applicability of this ancient Romanexception.The role of the exceptio doli generalis in the ancient Romanformulary procedure was discussed in detail, perhaps for the lasttime in our law reports. At the end of the third century AD theexceptiones of classical Roman law were superseded by post-



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122 ANNUAL SURVEY OF SA LAWclassical objections (praescriptiones) and the exceptio doli ceased tofunction as a praetorian procedural remedy, and as a technical termof pleading. The compilers of the Corpus Juris Civilis retained theexceptio, probably because of the extensive use made from thewritings of Roman jurists dating from the classical period. Themethod employed by the compilers had been the cause of confusionwhich resulted in the belief that the exceptio remained alive.The exceptio doli appeared in the works of medieval juristsbecause Glossators and Commentators wrote their glosses on textsin the CorpusJuris Civilis which related to the exceptio doli. In factthe medieval jurists introduced very important reforms into theRoman law of contract. The new rule nudo pacto nascitur actio hadits origin in canon law, the technical formalities disappeared andonly the essential elements such as consent for the validity of thecontract remained. The overriding principle that all contracts wereregulated by bona fides was enunciated. With these reforms theraison d'tre for the exceptio doli to ameliorate the harshness andinflexibility of contractus stricti iuris disappeared.The learned judge of appeal then turned his attention to a reviewof the Roman-Dutch jurists on this subject. He concluded that theexceptio doli generalis had never been part of Roman-Dutch law,and pointed out that his conclusion was confirmed by the significantsilence of the authoritative Dutch jurists and the total absence ofjudicial recognition of the exceptio doli generalis by the Hof vanHolland en Wes-Friesland and the Hooge Raad.Nor, it appeared, had the Appellate Division in any single caseever fully considered whether the exceptio was part of our law. InWeinerlein v Goch Buildings Ltd 1925 AD 282 the reliance on theexceptio had been based on the Roman law, but the attitude of theRoman-Dutch law had never been canvassed. Similarly, in Zuur-bekom Ltd v Union CorporationLtd 1947 (1) SA 514 (A) and PaddockMotors (Pry) Ltd v Igesund 1976 (3) SA 16 (A ) the question whetherthe exceptio formed part of Roman-Dutch law had never beenmooted. In both cases all references had been references to theRoman law.The majority judgment of Joubert JA somewhat unusually alsocontains a reply to the dissenting judgment ofJansenJA.JoubertJAwas of the opinion that the reasoning ofJansen JA had been basedon certain misconceptions. Joubert JA rejected Jansen JA's expla-nation as to why the exceptio was not used in Dutch practice. Theother criticisms of the dissenting judgment relate to the question ofthe equitable jurisdiction of the courts.Our courts and the Dutch courts, unlike the English courts, untilthe Judicature Act of 1873 became operative in 1875, do not and didnot administer a system of equity as distinct from a system of law. As



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GENERAL PRINCIPLES OF CONTRACT 12:5Joubert JA pointed out, Roman-Dutch law was itself inherently anequitable legal system. Although our courts and the Dutch courts ofthe 17th and 18th centuries paid due regard to considerations ofequity, this was done only where equity was not inconsistent withthe principles of law. Equity could not override a clear rule of law.Jansen JA was of the opinion that the exceptio constituted asubstantive defence based on the sense ofjustice in the community.There could in some cases be an overlap with public policy or bonimores. Joubert JA rejected the argument that bona fides and bonimores formed part of the substantive rule of law in Roman-Dutchlaw. Moreover, he said that Jansen JA had overlooked the fact thatthe Dutch courts had no equitable jurisdiction to introduce intoDutch practice a general substantive defence based on equity wheresubstantive law failed to provide one.Thejudgment of the majority is based on the fact that the exceptiowas purely a procedural device and that it had no proper applicationin the law since the third century AD. The reasoning is without faultbut, as Jansen JA pointed out, to deny the exceptio a place in ourlaw would leave a vacuum because the requirement of good faith hasnot yet absorbed the principle of the exceptio doli, nor has contrabonos mores as yet been specifically applied in this field. It seemedto the learned judge to be of no crucial import whether or not theleges dealing with the exceptio were received in Holland or fell intodisuse, because the existence of the exceptio as a defence based onequity was demonstrated by the decisions of the Appellate Division.Indeed, the lower courts had overwhelmingly assumed for manyyears that such a defence was available.As Jansen JA said, if the exceptio doli generalis cannot be reliedon we will have a vacuum in our law. What remedy is there for thoseat the mercy of standard form contracts where the terms are oftenreduced to print of a microscopic size? The German principle of deGoede Trouw and the English and American concept of unconscio-nability have been given statutory form, and it seems that theAppellate Division has now left no choice to our legislature but toenact the necessary protection against unfair contracts.REMEDIES FOR BREACH OF CONTRACT

Restitutio in IntegrumThe remedy of restitutio in integrum entitles the aggrieved partyto cancel the contract, recover his performance and tender the

performance he has received. He would then be entitled to berestored to his prior contractual position. This remedy is notavailable when a party has accepted the defective performance.



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ANNUAL SURVEY OF SA LAW

The plaintiff in Medispa (Pty) Ltd v Kroebel Tools & Products (Pty)Ltd 1988 (4) SA 415 (W ) claimed repayment of the purchase pricefor a certain mould produced by the defendant, on the ground thatthe mould was defective. The plaintiff did not cancel the contractimmediately upon receipt of the alleged defective mould. Some yearselapsed between the delivery of the mould and the notice ofcancellation, during which time the plaintiff used the mould for itsintended use, and, on a few occasions, returned it to the defendantso that the defects could be remedied. After three years thedefendant refused to carry out further remedies on the mould unlessthe plaintiff made an additional payment. An agreement wasreached between the parties, and then the defendant refused to carryout the repairs agreed upon.The defendant argued that the plaintiff had accepted the defectivemould by using it and by paying the balance of the purchase price,that it had therefore lost its right to repudiate the contract, and thatits claim was limited to a claim for damages for breach of theagreement. The onus of proving that the plaintiff had accepted theperformance rested with the defendant, and no evidence was led ofunequivocal acceptance. The court considered the effect of theplaintiff's delay in relation to its right to cancel the contract.Protracted delay did not deprive the innocent party of the right tocancel, but it was an element to be taken into account in determiningwhether the conduct of the innocent party amounted to an accept-ance of the defective performance.

The court noted that in Palmerv Poulter 1983 (4) SA 11 (T) theTransvaal Provincial Division had applied an objective test todetermine whether there had been a waiver of a right, whereas theNatal court, in Mahabeerv SharmaNO 1983 (4) SA 421 (D), had beenmore concerned with what the innocent party might have had inmind.

In the present case, following the objective approach, the courtmight have drawn the inference that the plaintiff had accepted theperformance, as in Schwarzer v John Roderick's Motors (Pty) Ltd 1940OPD 170, had the plaintiff not put a condition on its continued useof the mould. The argument that there had been acceptance had tobe rejected. The evidence supported the contention that the mouldhad been clearly defective from the start. The defendant had showna willingness to remedy the defects and had entered into anagreement to do so. The defendant's repudiation of that agreementamounted to a repudiation of its duty to remedy the original defects,



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GENERAL PRINCIPLES OF CONTRACT 125and that amounted to a breach of the original agreement to deliverthe article fit for its intended purpose.

C LITERATUREContract and Mercantile Law: A Source Book. By Ellison Kahn. 2 ed .

Volume I: GeneralPrinciplesof Contract,Agency and Representation.ByEllison Kahn (General Editor), Carole Lewis & Coenraad Visser.Cape Town: Juta & Co Ltd. 1988.South African Mercantileand Company Law. 6 ed . By J T R Gibson andR G Comrie. Cape Town: Juta & Co Ltd. 1988.Suid-Afrikaanse HandelsregVolume I 3de uitgawe. Redakteur: S R van

Jaarsveld. Pretoria: Lex Patria. 1988.'Don't Test Your Luck in Court.' By J R Midgley. (1988) 105SALJ 16.

'West Gone West.' By Selwyn Cohen. (1988) 105 SALJ 30.'Towards a Theory of Extinctive Prescription.' By M M Loubser.(1988) 105 SALJ 34.'The Enforcement of an Agreement to Grant a Get or Jewish

Ecclesiastical Bill of Divorce.' By Nathan Segal. (1988) 105SALJ 97.'Mitigation of Loss: Resale After Repudiation but Before Due Date:

Unpaid Seller's Financial Needs.' By A J Kerr. (1988) 105SALJ 202.

'Communicating the Exercise of an Option.' By J S McLennan.(1988) 105 SALJ 210.'Illegality and Co-debtors.' By Andrew Beck. (1988) 105 SALJ 418.'Remedies for Breach of an Option.' By Dale Hutchison & B J van

Heerden. (1988) 105 SALJ 547.'The Exceptio Doli Generalis: An Obituary.' By Michael A Lam-

biris. (1988) 105 SALJ 644.'Enforcing Restraint-of-trade Agreements in the Magistrates'

Courts.' By Mervyn Dendy. (1988) 105 SALJ 664.'Berekening van Skadevergoeding by Dolus Incidens. Colt Motors(Edms) Bpk vKenny 1987 (4) SA 378 (T).' ByJ G Lotz. (1988) 51THRHR 92.'Die Aanvang van Verjaring Waar die Skuldeiser Oor die Opeis-

baarheid van die Skuld Kan Beskik.' By G F Lubbe. (1988) 51THRHR 135.



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126 ANNUAL SURVEY OF SA LAW'Is Kontrakbreuk Moontlik by 'n Opsiekontrak?' By J G Lotz.(1988) 51 THRHR 237.'Afstanddoeningsbedinge in Sekerheidstellings-, Geldleen- en Skuld-

erkenningskontrakte.' By C F C van der Walt. (1988) 51 THRHR333.'Spesifieke Nakoming: 'n Regshistoriese Herwaardering.' By J J duPlessis. (1988) 51 THRHR 349.'Algehele Sekerheidsessies.' By Susan Scott. (1988) 51 THRHR 434.'Conduct by the Seller which Prevents the Estate Agent from

Earning his Commission.' By M E Rivalland. (1988) 51 THRHR454.'Breach of State Contracts Concluded with Foreign Private Inves-tors: An Interesting International Chamber of Commerce Court

of Arbitration Award.' By Giorgio Radesich. (1988) 51 THRHR519.'The Applicability of Legislation through Contract: Soekor and theMossel Bay Offshore Gas Development Project.' By AndrE Rabie.(1988) 51 THRHR 528.'Die Kennis van 'n Verteenwoordiger.' By DJJoubert. (1988) 21 DeJure 1.

'The Right to be Born: Surrogacy and the Legal Control of HumanFertility.' By M L Lupton. (1988) 21 DeJure 36.

'Statut~re Kontraksvoorskrifte met Betrekking tot Onroerende Goedin die Suid-Afrikaanse en Duitse Reg (vervolg).' By GerritPienaar. (1988) 21 Dejure 59.'Die Hantering van Onbillike Kontraksbedinge in die Verenigde

State van Amerika.' By C F C van der Walt. (1988) 21 DeJure96.'Die Standaardbedingprobleem: Ekonomiese Magsmisbruik, Ver-

bruikersvraagstuk of Probleem in Eie Reg?' By G T S Eiselen.(1988) 21 Dejure 251.'Airco Engineering v Ensor 1988 (2) SA 367 (W)-Sessie in securi-

tatem debiti.' By Susan Scott. (1988) 21 Dejure 367.'Aspects of the Contractual and Delictual Liability of Attorneys.' ByB Wunsh. 1988 TSAR 1.'The Bases for the Implication of Contractual Terms.' By J P

Vorster. 1988 TSAR 161.'Regsosiologie: Sentimentele Humanisme of Nugtere Realisme?' ByGerrit Pienaar. 1988 TSAR 184.



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GENERAL PRINCIPLES OF CONTRACT I1 /'The Legal Nature of a Certified Cheque.' By J H de V Dijkman.1988 TSAR 243.'Die Funksie van die Reels ter Beskerming van die Handelsvryheid.'

By L J van der Merwe. 1988 TSAR 252.'Die Siviele Metode van Tydsberekening (Computatio Civilis).' ByM M Loubser. 1988 TSAR 368.'Die Beheer oor Onbillike Kontraksbedinge in AustraliE.' By C F C

van der Walt. 1988 TSAR 396, 496.'Onbillike Uitsluitingsbedinge in Kontrakte: 'n Pleidooi vir Regs-

hervorming.' By C van Loggerenberg. 1988 TSAR 407.'Die Sekuriteitswaarde van Notariele Verbande in Mededinging met

Sessie in Securitatem Debiti.' By G F Lubbe & C G van derMerwe. 1988 TSAR 554."n Wisselende Moratore Rentekoers.' ByJ M Otto. 1988 TSAR 560.'A Perspective on the Elements of Estoppel by Representation.' BySchalk van der Merwe & L F van Huyssteen. 1988 TSAR 568.'The Effect of a Resolutive Condition on the Formation of a PactumSuccessorium-ubelius v Griesel 1988 (2) SA 610 (C).' By GiorgioA M Radesich & Anneliese Roos. 1988 TSAR 572.'Comfort Letters: Are they Binding under South African Law?' ByG Radesich & A Trichardt. 1988 De Rebus 795.'From Paternalism to Self-determination to Shared Decision Mak-ing.' By Dieter Giesen. 1988 ActaJuridica 107.'Accepting an Offer.' By Carole Lewis. (1988) 17 Businessman's Law

163.'Agreements in Writing.' By R D Sharrock. (1988) 17 Businessman's

Law 181.'Motor Car Dealers.' By Danie Visser & Dale Hutchison. (1988) 17

Businessman's Law 205.'Succession Clauses.' By Dale Hutchison. (1988) 18 Businessman'sLaw 80.

'Die Regsposisie van die Koper van Ongenoteerde Aandele in Gevalvan Verborge Gebreke en Wanvoorstelling.' By Estelle Hurter.(1988) 10 Modern Business Law 134.'Interpretasieprobleme by Voorwaardelike Vekopings.' By AnneliLoubser. (1988) 10 Modem Business Law 153.'Opsie- en Termynkontrakte-'n Nuwe Opsie.' By F H van Zyl.(1988) 10 Modem Business Law 170.



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128 ANNUAL SURVEY OF SA LA W'Harmful Business Practices/Skadelike Sakepraktyke: I The Harm-ful Business Practices Act, 1988.' By David Woolfrey. (1988) 10Modern Business Law 174.'Die Wet op Skadelike Sakepraktyke: Opmerkings oor die Betekenisdaarvan vir Verbruikers en Ondernemers.' By R W Alberts.(1988) 10 Modern Business Law 178.'Asset-transfer Contracts.' By R L Purves. (1987) 5 Responsa Meri-

diana 237.

Documents

1988AnnSurvSAfricanL105