Unit 9 Legality

1. Unit 9 Legality

2. Background: • Illegal contracts create no obligations. • Legality: Determined by the interests/convictions of society. • Public interest and Constitution once again play a role. • “Illegality”: conflict with statutory law or common law.

3. Public interest and good morals: • Contra bonos mores. • Law does not enforce morals merely because they are morals. • Morals must however be considered: Justice. • Agreements which are considered contrary to public interest and policy:

4. Agreements to the detriment of the state; • Agreements which obstruct/defeat the administration of justice; • Agreements which restrict someone’s freedom to act or to be economically active.

5. How does one determine illegality? • FOUND IN STATUTE AND THE COMMON LAW. • SEE LIST OF STATUTES THAT PROHIBIT CERTAIN AGREEMENTS.

6. Common law prohibitions: • Attempts to oust/undermine the jurisdiction of the court. • Agreements with enemy subjects. • Pacta de quota litis. • Pacta commissoria. • Pacta successoria. • Certain marriage brokering agreements for reward.

7. The par delictum- rule. • Delictum – illegality. • Sometimes, both parties have committed wrongful/illegal acts. • A comparison of debts can then be made. • Rule can only apply if party that claims reimbursement had acted immorally.

8. Klokow v Sullivan: • The par- delictum rule curtails the right to avoid the consequences of his performance or past performance of an illegal act. • It is concerned with the moral guilt of the parties, not their criminal liability.

9. Jajbay v Cassim: “Clean hands”- doctrine from English law. • Abovementioned doctrine: Similar to par delictum of Roman law. • In the above case it was argued that the rule should be relaxed where it is necessary to prevent injustice or to promote public policy. • Court found, however, that there was no need for the plaintiff to plead relaxation of the rule on the grounds of public policy.

10. Agreements in restraint of trade

12. See especially discussion of Coetzee v Comitis on p. 87-88. • Troskie v Van der Walt. • Golden Lions v Venter. • Santos v Igesund.

13. UNIT 10 CERTAINTY

14. Background: • Agreement in question must bring about certainty regarding its legal consequences. • Certainty for parties and third parties. • Failure to do so: nullity of agreement. • Past: Courts have been unwilling and incapable of relieving the parties of the burden of determining the consequences of their transactions.

15. Key question: Whether the agreement is defined in such a way as to render the obligation capable of being enforced by the courts. • Test: Objective. Surrounding circumstances may play a role. • Agreement may be void for vagueness despite parties’ belief that a contract has been concluded.

16. Sometimes: Impractical/undesirable from a business point of view to spell out the consequences of a contract completely. It may be kept open for future referral. It must, however, still be objectively ascetainable.

17. Proper writing skills and grammar use are required. Especially to determine performance and counter-performance.

18. Consequences of uncertainty of performance: Uncertainty regarding essential aspects: No obligation created. Also agreements of which material aspects are uncertain. Argument has been put that a contractual term intended for the exclusive benefit of the parties may be circumvented by a waiver by relevant party.

19. Abovementioned argument has been rejected. Performance in terms of a contract that is void for vagueness can still be recovered: Enrichment action.