Parol`s rule of proof does not apply when it comes to the question before the court as to whether the parties intended to erect an exclusive memorial[109] and when it is obvious that a written document was not intended in this way; In fact, the rule only applies to written contracts and only comes into effect when everyone is convinced that a contract actually exists. In addition, the rule does not apply if the document in question is only part of the contract or if the contract is partly written and partly oral, which corresponds to the assertion that the document was not intended to be such that it must be the whole contract. It must apply to the contract as a whole. The rule is also not applicable if: As a general rule, mora creditoris arises if the creditor is unavailable or inaccessible for the service to be provided or if he has otherwise delayed performance. The requirements for mora creditoris are similar in many respects to those for mora debitoris. There are five conditions: in the case of an innocent misrepresentation, there can be no claim for tortious damages, since the false statement was made through no fault of his own; nor a claim for contractual damages, since there is no breach of contract – unless the presentation has been assured. However, if the innocent false declaration is a saying and promissum, the buyer can demand a reduction in the price according to the actio quanti minoris: a limited form of reparation because it does not compensate for the indirect damage caused by the false declaration. A claim to a particular service is the main, obvious and most fundamental remedy in the event of a breach of contract, while keeping the interest of the creditor pending: when you conclude a contract, you expect performance in relation to it. South Africa`s approach in this regard is contrary to English law,[156] which favours damages and where the specific benefit is a special margin of appreciation that can only be claimed in certain circumstances. [157] [158] A right to a particular benefit may relate to the payment of a sum of money (ad pecuniam solvendum), a right to take positive action outside the payment of money (ad factum praestandum) or a claim to a negative obligation.
All statutes, including the common law of contracts, are subject to constitutional review. The Constitution therefore exerts a strong, albeit indirect, influence on contract law: “The principles of administrative jurisdiction form the framework of the contractual relationship, it is said, and the Constitution requires that all administrative measures be legal, reasonable and procedural. [29] [30] [31] The extent to which the Constitution can be invoked directly to challenge the validity of a contractual provision between private parties is a contentious issue. The Constitutional Court seems to prefer an indirect application of the Constitution between private parties: an approach that tests the validity of a private contractual provision in relation to the requirements of public order, but also recognizes that public order is now determined by reference to the fundamental values enshrined in the Constitution, and in particular in the Bill of Rights. Courts have shown that they are willing to intervene when a party exercises its contractual authority in a manner that does not take into account the constitutional rights of another party and may even be willing, in appropriate circumstances, to force a party to enter into a contract with another party on constitutional grounds. The remedy of a particular service is not absolute and does not guarantee success. Even if there is evidence of a violation, the remedy is granted only if the innocent party is willing to acquit and enforcement is subjectively and objectively possible for the defendant. The courts have exercised reasonable discretion to deny a claim for benefits, usually because of impossibility, undue hardship or requests for personal services. An order for a specific service is enforced in accordance with the usual rules of procedure.
Benson v SA Mutual Life, Santos v Igesund and Haynes v King William`s Town Municipality[159] contain guidelines to consider when asking the court to grant a particular benefit. A court does not issue an order for a particular service in cases where: If you are faced with a problem in an existing contract that may be questionable due to the nature of a party, you should immediately seek the assistance of a qualified contract attorney. If the clause is ambiguous, the court interprets it restrictively and contrary. The counter-proclaimed principle serves as a basis for determining the scope of these clauses. They are interpreted restrictively and limit them to reasonable limits as far as possible, without altering the clear meaning of a clause. This interpretation must be an interpretation to which the language is quite sensitive; [81] It must not be imaginative or distant. This means, for example, that a provision cannot be treated as a indemnification clause at all, or that a general clause may be interpreted as not relating to legal grounds for liability or covering only the minimum level of culpability for which the party would be responsible, or not addressing the circumstances of the claim. or not to protect against liability if, in view of the obligations expressly assumed, this would “render ridiculous the other provisions of the Contract”.
While necessary, the rule can lead to injustice if applied too rigorously by excluding proof of what the parties have actually agreed. Courts try to prevent the use of the rule as a driver of fraud by a party who knows full well that the written contract is not the complete agreement. In South African law, when interpreting a contract, it is first necessary to determine which conditions form part of the contract. A party who claims that a clause is part of a contract bears the burden of proof that the parties intended it to be part of the contract. The ability to sign contracts is a very delicate responsibility, as it allows an individual to legally engage in many different situations that can have financial, political or personal consequences. This is the reason why contractual capacity has its limits and can never be accepted when the nature of the contract is complex. The contra stipulatorem rule is based on the same basis as the contra proferentem rule, because the grantor (promissee) was the person responsible for formulating the determination in the language of his choice. These rules “reflect a normative obligation based on fairness and good faith, rather than seeking the intentions of the parties.” [148] A right of first refusal is a kind of preferential right “at a fixed price or at a price at which the grantor is willing to sell.” [34] A potential seller grants a potential buyer a right of first refusal if he decides to sell […].