Tourism Tattler - - AUGUST 2014), SEPTEMBER 2014), OCTOBER 2014), NOVE - Dis­claimer: This ar­ti­cle is in­tended to pro­vide a brief over­view of le­gal mat­ters per­tain­ing to the travel and tourism in­dus­try and is not in­tended as le­gal ad­vice. © Adv Louis Nel, 'Louis The Lawyer', Jan­uary 2016.

REQ­UI­SITE #10: ENFORCING YOUR CON­TRACT Home­work – What To Do Be­fore You Go Ahead

2. Have The Req­ui­sites Been Met? (Con­tin­ued - 2)

To re­cap where we ended off in Part 16 last month; The third ques­tion is whether there is con­sen­sus ad idem i.e have the par­ties ac­tu­ally agreed to the same thing/is there or has there been a ‘meet­ing of the minds'?

The fourth ques­tion that I want to cover here, is whether per­for­mance must be pos­si­ble – we've dis­cussed it in some de­tail in ear­lier ar­ti­cles but let's re­visit some of the key el­e­ments and some new ones. As men­tioned whether or not you are deal­ing with the im­pos­si­bil­ity of per­for­mance would de­pend on when that sit­u­a­tion arose and whether or not any of the par­ties were aware thereof: if it ex­isted be­fore the con­tract is en­tered into, then of course one of the es­sen­tials is miss­ing and there is no con­tract, BUT there may be a rem­edy avail­able in delict/tort (more about that later). How­ever if it oc­curs af­ter the par­ties have en­tered into a bind­ing con­tract then it is a dif­fer­ent ket­tle of fish!

The im­pos­si­bil­ity of per­for­mance may not nec­es­sary be due to the fault (neg­li­gence or breach of con­tract) of any party but due to cir­cum­stances which may amount to force ma­jeure. How that is to be ad­dressed may well be de­ter­mined by the con­tract or in lieu of a writ­ten con­tract and/or a force ma­jeure clause in the con­tract, it will be de­ter­mined by com­mon law.

• Con­trac­tual force ma­jeure (this is the French ver­sion that is strangely a bit wider than the Latin ver­sion, which is known as ‘Vis Ma­jor') clauses vary: some mir­ror the com­mon law whereas oth­ers pro­vide for ex­am­ple for the party not af­fected by the force ma­jeure such as the sup­plier, to re­tain cer­tain of the funds for ad­min­is­tra­tive fees; • The com­mon law will mean that there is no obli­ga­tion/right/ duty on ei­ther party and mat­ters have to re­vert to what they were be­fore the force ma­jeure event oc­curred – take for ex­am­ple the Shing­wedzi rest camp in the Kruger Na­tional park be­ing dev­as­tated by a flood, the ad­ja­cent bridge be­ing washed away and all book­ings be­ing can­celled (2014).

I also pointed out that it could be even more com­plex if the con­tract con­tained a guar­an­tee or war­ranty – if this is the case then it does not mat­ter when the im­pos­si­bil­ity arose. These two terms are of­ten used syn­ony­mously, but is it cor­rectly used and what does each word mean?


• A guar­an­tee is usu­ally free and is a prom­ise about an item by the man­u­fac­turer or com­pany: prod­uct will live up to ex­pec­ta­tions – is linked to per­for­mance of the prod­uct af­ter the sale;

• It's a prom­ise to sort out any prob­lems with a prod­uct or ser­vice within a spe­cific, fixed pe­riod of time;

• Nor­mally given by man­u­fac­turer;

• Whether you paid for a guar­an­tee or not, it is legally bind­ing;

• The guar­an­tee must ex­plain how you would make a claim in a way that is easy to un­der­stand;

• It adds to your rights un­der con­sumer law;

• It will take ef­fect whether or not you have a war­ranty. War­ranty

• A war­ranty acts like an in­sur­ance pol­icy for which you must pay a pre­mium. Some­times a war­ranty is called an 'ex­tended guar­an­tee' and refers more to the parts of a prod­uct;

• Nor­mally given by re­tailer or dis­trib­u­tor;

• May last longer than a guar­an­tee and cover a wider range of prob­lems;

• A war­ranty is a le­gal con­tract – as op­posed to a guar­an­tee, which is mostly part of a con­tract. A war­ranty is of­ten a ‘stand alone' con­tract but it is not an im­plied part of the sale like a guar­an­tee – it is a vol­un­tary op­tional and ad­di­tional prom­ise by the provider thereof;

• It is a doc­u­ment is­sued to pro­tect and ex­tend con­sumer rights i.e sup­plier is li­able for re­pair or re­place­ment parts;

• A war­ranty can be in place with a guar­an­tee.

Fi­nally you have to check whether the con­tract con­tains any sus­pen­sive con­di­tions and if so, has it/have they been met? The one we are all fa­mil­iar with is when you pur­chase a prop­erty and then make the sale/pur­chase con­di­tional upon the buyer ob­tain­ing/be­ing granted a bond.

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