The main objective of the parties during contract negotiations should be to reach a consensus on the exact purpose of their agreement on the best terms. To be valid, some contracts must be concluded to the notarized, for example contracts for .B supplement or prospecting and mining lease contracts, in this case they are called « deeds » and are public instruments. The courts use their power to terminate a contract because contra bonos sit only sparingly and in the clearest cases. It is necessary that the general duration of the contract be contrary to public policy. If the relevant public interests are rival or even contradictory in nature, the courts must weigh the different interests against each other. The sanctity of the contract is often preferred. The burden of proof of illegality appears to lie with the relying party, but a court will take note of the illegality on its own initiative in certain circumstances. Either the conclusion of a contract or its performance, or the reason for its conclusion is considered reprehensible and renders the contract null and void. However, the Court accepted the rule that, where a contract has been reduced to writing, the letter is generally regarded as an exclusive reminder of the transaction and, in a dispute between the parties, apart from the document containing secondary evidence of its content, no evidence of its conditions can be adduced, and the content of such a document cannot be disputed. modified, added or modified by Parol evidence. [102] In South Africa, however, the fact remains that the word condition is used very vaguely in the drafting of contracts.
In the following formulation – « I agree to donate R50,000 on the condition that… »– we have no condition, but a modal mode or clause. Remedies in the event of infringement are aimed either at the performance or termination or termination of a contract. Full performance is the natural reason for terminating a contract. Since the breach affects good performance, the main recourse is therefore directed towards enforcement. Annulment is an extraordinary remedy. The main sources of obligations are contracts and offences, the latter being illegal and culpable behaviour that harms a person. There is a close similarity between a breach of contract and a tort, since both constitute civil injustice and may give rise to an obligation to pay damages as compensation. It is therefore not surprising that a particular conduct can constitute both a breach of contract and a tort (as in Van Wyk v. Lewis,[7] a surgeon negligently left a cotton swab in a patient`s body), in which case there is simultaneous liability that allows the plaintiff to sue on both bases. Exception clauses are often used by large companies to plan, protect against liabilities, and control variables that are not otherwise controlled.
Although this is an important feature of contracts, the fact that they are used on such a large scale means that they are treated with suspicion by the courts and: contract law is part of the law of obligations. An obligation is a legal obligation (vinculum iuris) between two or more parties that obliges the debtor (the « debtor ») to give, do or refrain from doing anything to the creditor (the « creditor »). The right created by an obligation is personal, a ius in personam, as opposed to a right in rem (ius in re). The words « creditor » and « debtor » apply not only to a pecuniary claim, but also to a claim on everything that is due – whether unconditionally, conditionally or in the future. If an obligation is enforceable by bringing a legal action, it is a civil obligation and not the less widespread and unenforceable natural obligation. « The most important point » with regard to the legal effect of contracts is « the duty of the parties to fulfil their obligations ». [6] Delegation is different from similar situations, but which do not meet the above definition. For example, if a debtor asks a third party to pay the debts on his behalf, we do not have a delegation, but only a mandate contract. Since the creditor is not aware of this and the common intention of all parties is therefore lacking, it should not be said that a new contract has been concluded. Even if the debtor requires the creditor to return the third party for payment in the future, this is only an assignment of the debt; the third party intervenes on its own initiative – ex promiso.
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