Topic Two Ownership

Concept of Ownership
There must be a distinction between owing and possessing.
2 types of ownership (medieval idea of ownership)
o Dominuim Directum: Full ownership.
o Dominium Utile: Degree of ownership. Ie sertivtude.
Modern idea ofownership 1 type of ownership, BUT with different rights. Ie. Right
to use it, right to alienate it, right to use fruits etc.
There is a distinction between Germanic concept and Roman Law concept.
o Germanic- they had duplex dominum, much like medieval law.
o Roman law recognized duplex dominum, but saw it more as ownership with
different rights more life modern concept.
Roman Law concept
o Own split into Complete (full ownership) and Incomplete (Real rights)
o Real Right = rights over a possession or land, when one is not the owner. Ie rent,
servitude..
o Subordinate Right =
o Grotius distinguishes for the 1st time between real rights and subordinate rightstoday this is a commonly accepted view of ownership.
Transformation of ownership in the peasent communities.

Peasent: rural cultivator with no real control over their land and is subject to outside
power.
Social conditions not only change the concept of ownership, but also the concept of
who is owner, without the law fundamentally changing.
Three large scale transfers in 3 communities.

1. Medieval shifting of ownership.

Peasents become stronger and they want to give their tenure over land to their heirs.
Royalty had dominum directum over land and peasants had domunium utile. But slowly
peasants began to take more and more control over land, so royalty gave them security
of tenure.
Pesants wanted a fixed yearly land tax, so that their heirs could aquire the land.
2. Resolution of the Irish land 20th century.
Large part of Ireland owned by English barons (anglos).
English owned the land, but the Irish ran it.
There was a potato famine, the barons offered to sell the land to the Irish. The English
crown then offered to fund the Irish buying the land because the Irish could not afford
it.
3. The land question in South Africa

Blacks in SA could not own land once Dutch arrived.

1913 Land Act gave Blacks 13% of the land (80% of population)
ANC led a movement in support of the Restitution of land Act
A lot of land has been given back, but there is still a land issue.

In Roman law there was 1 major concept of ownership in Germanic law there were
2 concepts of ownership (duplex domunium) RDL took both these concepts and
fused them into 1, so that there was ownership as a whole and real rights This
further gets divided into 2 different areas of Real Rights and Ownership, which is
illustrated in these social revolutions.

This transformation shows the big distinction between Real right and Ownership. In
Roman Dutch law one could be posses and work on it, but it meant less than being the
owner of the land. After these social revolutions, Possession and Real rights became
more important than ownership over land.

Different Concepts of ownership

Donellus
o Right to own object.
o Freedom to preserve it intact.
o Right to use it.
o Prevent the use of it by others.
o Right to alienate it from others.
South African Law
Ownership is a relationship (Fact, Legal, Servitude)
Law of property defines these relationships.
Function of law of property (Competition rights, ownership rights, transfer)
Basic principles of law of property.
o Closed system of transfer and types of ownership.
o Property rights are absolute
o Publicity is needed.
o Specific rights over specific items (ie, only servitude over land)
o Rights are transferable there are restrictions on this though.
o Abstract conveyance is fine.
Laskey And Another v Showzone CC And Other.
o Case is about how much right you have as an owner to use and abuse your
property.
Statutory provisions
Other people rights/property.
o State has an overriding right over persons and the property of individuals in
order to protect the interests of all Noodt (pg 21)
o Plaintiff wanted court to issue and interdict to stop defendant operating
business.

o Plaintiff had to show that if there was a law (duty) not to make a noise, it vests a
reciprocal right in the public to not have to have noise.
o The plaintiff tried to claim for compensation under the Lex Aquillian (which is a
delictual claim for damage to property) but this claim failed
o If a law protects a specific class of people, then in order to be protected by it, one
must prove that they are part of that class of people. If the law is for the general
public, then one has to show that they were harmed in order to be protected by the
law The law here pertained to residential area (specific class) The plaintiff
had to show that the area they were living in was a residential area (specific class)
and not a business district in order to get protection The difficulty in definition is
because there was a lot of rezoning and an encouragement for entrepreneurs to
move the cities. If they could not prove this, then they would have to show harm
has been done.
o The court found that the law was meant for general public protection the plaintiff
had to show harm had been done proof of breach of interdict is not enough.
o People should be able to use their property as they please, if it doesnt infringe on
others enjoyment, reasonably Factors for reasonable enjoyment.
Noise level
Social utility
Modern world has noisy things must be taken into consideration.
o Test to test reasonableness is the noise reasonable according to the ordinary
usages of mankind living in a particular society.
o There is a balance between two rights. Plaintiffs right to not have noise in his
property, and defendants right to do what he wants in his property.
o To say that the person who was there first has a right to the conditions of the area,
court says is not a good argument. (ie, I was making noise before u got here,
therefore you must put up with it.)
o Defendant says that the noise is not actually harming the plaintiff, but instead just
an inconvenience not enough to make an interdict.
o This type of action is not for discomfort to a person, but instead for discomfort to
property. This makes sense because the action the plaintiff used was a delictual
action under the lex aquillian for damage to property. The plaintiff could have
used a personal claim (actio inuriam) for personal harm. But if they had used this
then they could not have relied on the noise regulation rules.
o The only reason an interdict is allowed is because the defendant had not taken all
precautionary measures to ensure the noise was kept from escaping. They did not
win on an Aquillian action. If the plaintiff just has a low noise tolerance then
there is not interdict, but if the noise is actually too high, then there is they called
in a noise expert.
o Defendant is given time to fix their noise protection in order to prevent noise
escaping. Therefore interdict is given, but suspended.

Topic Three Transfer of Ownership

A Transfer of ownership

2 types of Conveyance in Roman Law

o Formal conveyance (Mancipatio):
Reserved for Res mancipi (Valuable things cattle, slaves etc)
Highly symbolic
Strict set of rituals and words that must happen in order to transfer
ownership.
Used for sale of property.
Advantaged of Mancipation
Showed publicity,
Brought more people into the sale helped with secutiry.
Eliminated litigation
Certainty of sale allowed people to really think.
Disadvantages of Mancipatio (and cessio)
Communities grew and it made no sense to get 6 random people in a
community to witness the transfer
Was inconvenient for large things ie. Herds of cattle.
Role of writing mancipatio turned into a document.
Peoples wealth spread to money, jewels etc, which no longer fell into
classification of slaves, cattle, land.
o Informal conveyance (in iure cessio):
For res nec mancipi (non valuable things)
Involved a codified set of words that must be said.
By Justinian times both mancipatio and cessio fell away and were replaced with
o Mancipatio = Traditio for corporeal thing
o Cessio = written documents for incorporeal things.
3 requirements for tradio in classical law.
o Physical Delivery
Must be physical and mental element
Introduction of Longa Manu, Brevi manu, constituim.
Immediate delivery is replaced by Causa (longa manu etc). This helps 2
parties with clarity, but doesnt help 3rd party know what owns what.
o Causa (intention) 3 types
1. Causal views: Intention is only there if the contract is valid (object, price
etc). Causa needs an underlying valid transaction (ie. a sale) to transfer
ownership. If there is any problem with the contract, then the transfer is not
valid and ownership does NOT pass.
2. There is only intent if both parties have the intent to transfer something.
There is an agreement on everything, object price etc. But the purpose of the
contract is defective. Ie. You cant transfer ownership of something that is not

yours to sell. There is a reason by statute or law as the why the contract cant
work.
3. Abstract view: Causa is an abstract concept and was not actually necessary
for transaction. Both parties just need intention to sell and buy to be able to
transfer no concrete causa necessary. Ie. I know I want to sell my cow, I
dont care how or for what, but I want to sell it.
o Ownership
Position of Causa in Roman Law we dont really know which view of causa they would
have taken, debate between 1st and 2nd, as there are cases of both. Most people think it was
2nd.
By Justinian times they leaned towards it being an abstract concept (3rd view) causa is
not necessary if there is simple intention.
Medieval Development
o Roman law was expanded by Germanic customary law
o Documentary conveyance: similar to Roman Law, but it was more official/ formal.
Needed to be noted by an official. Use of deeds by lombards. Different to
Roman law because in Roman law the delivery conveyed ownership and document
was proof. With the lombards, the contract (deed) is the actual conveyance
(tradition per cartam).
o Franks came after Lombards
Require that the sale of land happens in court
Aimed to keep a record. (grund buch)
This gave rise to the idea of a deeds registry
o This whole development came together in Germany all land transfer was
recorded Only for land
o Odd because in roman law there was no distinction between movable and
immovable property.
o Netherlands:
People start using deeds and Traditio per cartam.
Delivery falls away completely, registration book is the sole source for
transfer of land.
Natural Lawyers
o School of intellectuals in 17th, 18th century (Grotius, Pofendroff, etc) They were
the glossators and commentators they created civil law.
o Very liberal thinkers, based on morals, not bound by past thinkers.
o They thought traditio (delivery) was not necessary, all you needed was intention to
transfer complete opposite of Roman Law.
o Transfer should be based on a causa (a reason for transferring, not specific) voet
says you need a causa habilis a just cause. (justa causa)
o By this way of thinking there is no registration of deeds etc.
o There view is very inconvenient and did not protect 3rd party.
South African law
o Formal Conveyance:
Registration of land introduced by Dutch.

Central Deeds Registry run by Registrar of Deeds.

Deeds registration Act 1937
Mimics Germanic lombards law.
Advantages
Protects 3rd Party
Helps settle disputes
Know when ownership passes.
o Informal Conveyance:
Roman rules on traditio were transmitted to SA via Roman Dutch writers
(Voet and Grotius)
There is case law that backs up each type of traditio in SA law.
Traditio longa manu is recognized in Goosens Trustees v Goosens
(1884)
Traditio brevi manu is recognized in Assignees of OCalleghan v
Cavanagh (1882)
Constitutum Possessorium is recognized Stradfords Trustees v The
London and SA Bank
English Influence
o Attornment: where one party posses the thing, and the other party is the owner of it,
and has intention to take it. 1 party has physical possession, but not intention. Other
party has intention but not physical possession. the holder of the object retains
physical control on behalf of another person. Ie bank owns belongings of bankrupt
man, that he using in the mean time.

B - The relationship between contract and conveyance

2 types of transaction
Abstract conveyance: Independent of validity of contract. There is a transaction but no
underlying reason as to why. For example someone who signs a contract to transfer ownership,
but does not actually mean to transfer ownership.
o Randles Case: The importer did not intend to transfer ownership, even though they have
gone through the formalities of a contract. Even though they didnt have intent to
transfer ownership, they did have intent to be bound by a contract.
o Beit v Logan: Signing a contract, even though he didnt mean to, was valid.

Causal conveyance: Relies on the validity of contract. Both parties must have the same causa.
Therefore, no causa, no conveyance.

3 Types of causa
Causa (intention) 3 types (AS MENTIONED ABOVE)
1. Causal views: Intention is only there if the contract is valid (object, price etc). Causa
needs an underlying valid transaction (ie. a sale) to transfer ownership. If there is any
problem with the contract, then the transfer is not valid and ownership does NOT pass.

2. There is only intent if both parties have the intent to transfer something. There is an
agreement on everything, object price etc. But the purpose of the contract is defective.
Ie. You cant transfer ownership of something that is not yours to sell. There is a reason
by statute or law as the why the contract cant work.
3. Abstract view: Causa is an abstract concept and was not actually necessary for
transaction. Both parties just need intention to sell and buy to be able to transfer no
concrete causa necessary. Ie. I know I want to sell my cow, I dont care how or for
what, but I want to sell it.
Historical views on the relationship between contract and conveyance.
Classical Roman law
o Disagreement in classical law about traditio
o Predominant view is that traditio is causal. Delivery is not enough for transfer. There
must be a motive to transfer.

The Natural Lawyers

o Ownership could transfer by intention alone. (only causa is enough)
o No need for conyevance.
o You dont need to have the object delivered at the time of sale in order for their to be a
transfer of ownership.

Roman Dutch Law

o 1st owner must put 2nd owner in actual possession. Agreement alone cannot transfer
ownership
o The reason that delivery happens is because there has been an intent to transfer
ownership from the 1st owner to the 2nd owner. This is not an issue of causa, but merely
the reason for delivery.
o Voet: Causa Habilas (Justa Causa) is needed to transfer ownership. There needs to be an
underlying reason (causa) for the agreement in order to transfer ownership.
o There is a lingering disagreement in RDL over what type of causa, if any, is needed.

German Historical School

o The intention of the parties (causa) is an agreement in its own right creates a Real
Agreement.
o This agreement gives rise to personal obligations of both sides.
o Intent is enough to transfer ownership.
o BUT Savigny says delivery is needed as well (corpus AND animus; object AND
intention)

South Africa Law

o Beyer v Mckenzie
Homles brought horses from Beyers. Claimed he was working for the
government and that the government would send a cheque. Holmes then sold
the horses to Mckenzie. Beyers wants to claims the horses back from Mckenzie.
Beyers (plaintiffs) argued that

It was a cash sale No price was paid no transfer of ownership.

RDL would hold whole contract void because of fraud (Nemo plus
Urius)
Mckenzie (defendant) argued that
Sale between Holmes and Beyers was a credit sale (because a time
period was given for payement) and therefore ownership did transfer
immediately. As he had handed over delivery, and price was agreed on
credit ownership had passes.
RDL the contract would not be void for fraud.
RDL fraud does not effect 3rd party rights.
Judgement
Sale is a credit sale ownership passes without payement
Contract is void because there was no agreement between the 2 parties.
Beyers thought he was selling the horses to the government, while he
was actually selling them to holmes There was an error in identity of
the parties, which is a material mistake in a contract makes a contract
void. (No contract with Holmes, an no contract with government = No
contract)
Bare delivery (delivery without causa) is not enough to transfer
ownership (from Beyers to Holmes) Therefore homes could not sell
the horses to Mckenzie, as they werent his to sell.
Relied on English case law for judgement Judge De Villiers was
criticized for relying so heavily on English Law.

o Commissioner of Customs and Excise v Randles, Brothers and Hudson LTD.

New regulation that in order to get a tax rebate, any imported goods had to be
declared as property of the manufacturer when brought into the country
Randles agreed with 5 different manufacturers that he would import it, transfer
the ownership to the manufacturers, they would manufacture the goods and then
transfer ownership back to Randles
Customs brought action against Randles, claiming that he wasnt really
transferring ownership to the manufacturers, and should get no rebate.
De Wet
Looks at the terms and conditions of the contract. was all completely
agreed between Randles and Manufacturers (Signed etc). But the
problem was that there was no intention to actually transfer ownership
Looked like a contract of hire, and not a contract a contract of sale.
Voet says: a central part to any contract is the intent to transfer
ownership. But in this case, there was no real intent. Randles only
wanted the manufacturer to hold onto the goods while the manufactured
them.
Main question in the case for De Wet is whether there was a genuine
sale. If there was, then Randles must win. If there was not, then Customs
must win.

Therefore. Law must look at what contract ACTUALLY IS, and not
just what it is CALLED! Even though they call it a sale, it may be a
hire contract.
In order for a genuine contract of sale to exist. There must be Animus
Emendi (intention to take ownership) by purchaser. There must also
be Animus Vendendi (intention to pass ownership) by the seller
Not enough to think that they had intention intention must be proven
as well! (question of fact)
De Wet found that even though the seller had animus vendendi, the
manufacturers did not have genuine animus emendi to buy and
become owners.
Manufacturer did not actually get any money for buying and selling the
goods to and from Randles. The only money they made from cutting,
making and trimming. There was no profit from the sale between
Randles and manufacturer was more of a token price.
Randles maintained control the whole time of the goods.
Manufacturer could not resell them to someone else or alienate the
property. Therefore Randles never actually gave up ownership.
Lack of seriousness in contract and lack of care for price of sale leads us
to believe there was not a proper sale.
No intention to transfer ownership Materials transferred to
manufacturer only for purpose of Randles No genuine sale no
rebate
Watermeyer
An agreement that is disguised to avoid an operation of law is fraud.
When the law forbids a type of transaction. 2 problems occurs
o The law has to define what kind of transaction is forbidden
o The transaction in question must be interpreted to determine if it
fits the description.
But when it comes to the 2nd step, parties sometimes seem to cover up
what they are really doing. (Fraudem Legis disguised agreement, with
some unexpressed or tacit agreement between parties)
Therefore court determine what the action actually is, and not what
the parties claim it is.
A Fraduem Legis is dishonest because the parties do no intend to be
bound by what the contract appears to be to the outside world.
Ownership does not pass on making of a contract, it passes when
delivery is accompanied with intention to transact.
If parties desire to transfer ownership and intend that ownership will
pass as a result of delivery, then they do have necessary intention and
ownership will pass. in this case, they did have delivery and they did
intend for ownership to pass, therefore ownership does pass and there
was a valid sale when a voluntary act is done with an expectation
of a consequence, then that consequence is intended. Randles and

manufacturer intended for ownership to pass, therefore ownership

passes.
They knew that they needed to transfer ownership in order to get rebate.
Therefore they had a real contract with intent to transfer ownership in
order to get the rebate. They are not trying to hide that they were
trying to get the rebate. They had intent to sell, only so that they
could get it. This is legal!
Voet says that in order to have a valid sale, there must be
o Consensus
o Merx (object)
o Pretium(price)
all are present in this case. must be a valid sale.
Argument: Ownership only passes if new owner has ability to do what
he wants with the property. BUT this argument is rejected because the
manufacturer has the right to sell his goods back to Randle as a
clause in the contract. The fact that they decided to not resell the goods
to someone else is his decision.
Onus is on plaintiff to prove contract is not valid
Watermeyer thought that Randles should succeed
o Ample evidence of a legit sale
o Randles won at the court of 1st instance
o Too many people involved for a conspiracy
The sale is legititmate Rebate is ok Randles wins
Dissending Judgements
Contract was not one of sale, but instead one of hire therefore there
no proper intention of transferring ownership

Emergence of a general law of contract

Law of contract is any seriously intended agreement that can be enforced by law
Roman Law (4 types of contracts)
o Real Contract: Contract comes into force on delivery
o Literal Contract: Written contract
o Verbal Contract: Stipulatio (specific form of words that are said to be binding same
verb is said)
o Consensual Contract: Arises on agreement alone
Is just having an agreement sufficient for a contract?
o Real: Agreement is neccesary, but not sufficient also need delivery
o Literal: Agreement is not necessary all that is needed is written agreement
o Verbal: Agreement is not necessary all that is needed is verbal form
o Consensual: Agreement is necessary and sufficient.
Expansion of contracts (how did Romans deal with problems in contracts)
o Innominate (real) Conracts
Romans created a new form of contract which encombased different types of
agreement that didnt fall into 4 previous types of contract. Ie. (I do if you do)
Action arises once there is part performance
Up till now for all these other agreements that fall under innominate contracts,
the only remedy was unjustified enrichment.
Innominate Contracts gave way for a remedy to claim back contractual loss, like
the remedy that was avalible for other 4 types of contracts.
o Pact

To address problem of unilateral promises where only 1 party agrees.

Pacta Adiecta could be used to add onto a bona fidei contract, just to help vary
the terms. Ie. We have a contract to sell a car. You make a Pacta Adiecta to
deliver the car by tomorrow.
They also created free standing agreements (pacta praetorian & pacta
legitima) pacts that did not add onto another contract. Ie. I will look after
your house.

o The Degeneration of the stipulation

Use of the same verb as the other party in order to bind a contract. (stipulation)
This degenerated because of the role of writing.
A clause in a contract was put into a contract to say that it had been done.
Stipulatio fell away for the same reason as mancipatio

A system of specific contracts in Justinian Law

There was not a general system of laws for contract.
Each type of contract had specific set of laws attached to it.

o Medieval Law
Pacta Nuda: Nude pacts are not classified as any type of contract.
Pacta Vestimenta: Clothed Pacts Pacts classified by law.
If a pact is classified then it has an action attached to it.
only difference between the clothed and nude pacts, is that the law had
recognized clothed pacts as a categorized type of pact. Ie. Pact not to sue (pacta de
non pretendo) was recognized by law and was a clothed pact.
Nude pacts were hence not actionable, while clothed pacts are.
The doctrine of causa
o Medieval lawyers came up with a way to distinguish between nude pacts
and stipulatio
o causa was used for this distinction. In order for there to be causa, there
needs to have been a serious intention of some kind. Nude pacts
lacked this underlying reason stipulation on the other hand had a
causa (serious intent), otherwise the parties would not have said their
part.
Cannon Lawyers
o Contracts were governed by a moral oath.
o If you broke a contract, you were breaking an oath and offending God.
o Even a naked pact should be honoured because it is still a promise.
they thought that even naked pacts could have a causa and hence could
be actionable.
By the end of the Medieval period they had landed up with the idea that every
agreement that has a serious purpose is an actionable agreement.
There used to only be 4 types of contract, but now every type of agreement is
actionable.
o Natural Lawyer a general theory of contract of promise
Grotius:
o contract is a promise
o promise is a unilateral declaration of ones will
o In order for the other party to aquire rights, and hence give you
obligations, they have to accept your promise.
this move away from the pact idea of a unilateral promise to a bilateral
agreement.
a unilateral promise does not give one rights, only a 2 way agreement
gives one rights.
Contract as a convention or pact (Paffendrof)
o Bilateral declaration of will
o This is the next step beyond a promise 2 way agreement
Contract as consensus
o Consensus is needed to make any contract binding.
o I declare my will, you declare your will. We agree on it
o It is a meeting of the minds that creates agreement.

Natural lawyers have taken materials from Roman Law and make them apply
all round, to all contract.
Animus = conflict between what people express and what they intend.

o Roman Dutch Law

A naked agreement does give rise to an obligation.
Voet: any naked contract, if seriously intended, is actionable
By this time Causa was dead, because any type of agreement was actionable.
o English Law
Influenced by wills theory of natural lawyer
Doctrine of consideration
Opposite to idea of consent instead of both people agreeing, there had
to be an exchange of some sort therefore gratuitous contracts are not
enforceable by law.
Very rigid, will only arise for obligations performed in a certain way.
Must be written and sealed.
Grew out of glossators idea of causa, which the English interpreted as a
serious purpose in the form of exchange in both directions.
o South African Law
Emergence of Doctrine of consideration in Cape Supreme court.
Louisa & Protector of slaves v Van der Berg
Louisa was Van der berg (jnr)s slave and common law wife
He promised her freedom once he died.
Van der Berg (snr) refused her her freedom
Caught ruled that Louisa could enforce an action on the gratuitus
promise, even though she was 3rd party to the promise (was between Van
Der Berg Jnr & snr)
important because this was the enforcement of a gratuitous contract. The
court were against consideration
Alexander v Perry
Book keeper leaves job despite promise to stay
Employer tried to sue him,
Perry raises an exception that the contract is void due to lack of
consideration.
Court decides that the promise to stay can not be upheld because there
has been no consideration
The first time consideration is used to SA law.
changed to position of SA law to favour consideration
Rood v Wallach
There should be no consideration in SA law.
SA law should be based on Roman Law and not English law.

Consideration relies too heavily and not enough on true sources of

Roman Law.
Conradie v Roussouw
o In first instance Conradie sued Roussows and Roussow won court
stated that consideration WAS a requirement for a contract to be
actionable.
o Condradie bought the appeal
o Roussow excepted to the appeal
o Solomans
Roussows rented out property to Conradies.
Roussows wrote conradie a note to say that after they die, Conradies
could buy the property.
2 years later Roussows took back the promise, even though it was in
writing.
Roussows said the promise was not valid as there had been no
consideration. It was just a gratuitous promise.
Question: is consideration necessary to support a contract?
2 grounds for appeal (exception by roussow)
1. The promise was not put down in a testamentary will. They could
reclaim it at any stage (This ground failed)
2. There was no consideration was a gratuitous contract.
Cape Division (Alex v Perry) = Consideration was necceary, Transvall
Division (Rood v Wallach) = Consideration was not essential to a
contract
Causa is a legitimate reason for a promise
Consideration under English law is foreign to contract in RDL, and is
unnecessary in creating a binding obligation
Consideration is not necessary in our law and hence the promise is
enforable.
o Maasdorp
Causa under Roman Law is NOT consideration.
Goes through history of promise and contracts
According to many of the historical authorities that he has
considered the nude pacts without consideration IS actionable in
law.
Veot: the promise made does give rise to an action provided that the
promise has serious intention to be bound Maasdorp thinks we
should agree with voet.
Most common way in which serious and deliberate intention is
shown is by putting promise in writing this did happen in this
case
Nude pact does give rise to an action, same as a contract does,
even without consideration
o De Villiers

No one should be bound by a contract unless he gives and receives

something (quid pro quo).
In case law every legal agreement, made deliberately and seriously
may be enforced
Causa has a much wider meaning than consideration
There is a distinction between civil and natural obligations
o Natural: You have to do what you say, by ethics
o Civil: There is an obligation by law.
In Roman law there are 3 ways in which an agreement becomes
actionable
1. Consensus in a specific form. ie stipulation
2. Part performance
3. Consensual contract in exceptional cases
Quick History of development of general idea of contract:
o 4 main types of contract (Verbal, written, consensual, real)
o To fill in the gaps innominate contracts made allowed
for claims under contract of sale
o Pacts some were actionable, some werent
Stipulatio: was not confined to specific transaction (buying. Hiring
etc) The importance of stipulation was a method of contracting and
not a contract itself.
In English law there is no justa causa for a promise unless there is
some form of benefit or reciprocity by both parties.
In order for a contract to be binding, consensus and causa are
required. Consideration is NOT required. In this case there was
cause, but no consideration.
The appeal was allowed, and the exceptions were dismissed.

Mistake In Contract

Mistakes in contract is a conflict in the theory of will: Subjective will v Objective will. What
you mean v what you say.

Roman Law
o Not one theory in Roman Law, instead it is build on different examples.
o Julian: If you lie to me in what you sell me, the purchase has no effect. Condictio to
recover money paid.
o Ulpian: If there is a disagreement on what is being bought and sold, then contract is
void.
o Emphasis on what was meant and not what was expressed. mistakes could hence
void contracts.
o Mistakes in object, identity, quality and attributes can all be grounds for destruction of
the contract.

Roman Dutch Law

o Takes on the approach of Roman Law in that a persons will/intent is very important
o Grotius: no one could be bound by their errors or what was done by other parties deceit.
o No will where no understanding, no obligation if no will
o Veot: Only a reasonable mistake can void a contract.

Natural Lawyers
o They chatagorized different types of mistakes into those that void and a contract and
those that dont.
o 3 errors that are sufficient to void a contract
1. Error in corpore: mistakes in subject matter
2. Error in pretio: Mistake in price
3. Error in negotio: Mistakes in transaction
o 2 additional errors which were less likely to invalidate the contract
1. Error in persona: error in identity of the other party to the contract
2. Error in substantia: material quality of the contract
o 1 type of error that never invalidates
1. Error in mutuum: Mistakes in motive for sale

English Law
o Pothiers subjective will theory thought that an agreement of intent was necessary.
o General idea in English law disagreed with Pothier Only bound to extent to what
you have expressed.
o Unless there was fraud, parties were bound by what they said.
o If parties act as if they are bound by the terms, and it seems as if they are concenting to
them. If both parties enter into the contract, they are both equally bound, despite their
intentions.

o 19th century typology of mistakes

Common mistake: both parties agree on the
terms, but there is a fendemental mistakes that
can sometimes invalidate the contract.
Dissensus:
1. Mutual Mistake: Both parties have
different intent and different expression of
will. I say X and think X, you say Y and
think Y
2. Unilateral Mistakes: One party has made a
mistake, but signs contract. I say X and
think X, you say X and think Y.
Examples of mistakes (that may or may not void a contract)
o Mistakes in fact or circumstance, that is material in inducing agreement.
Cooper c Phibbs: Seller of land did not own land when he sold it
o Mistakes in the application of the expressed agreement of the facts.
Could be a mistake by both or one party. Raffles v Wichelhaus: 2
ships with same name and same produce are arriving 3 months apart.
Enter into contract, but there is a mutual mistake as the terms of sale
(date of purchase). Mistake in expressing matter of agreement, therefore
contract still stands
o Mistake in the agreement itself, one party doesnt know they have
contracted at all. invalidates a contract
o Mistake in expressing the matter of the agreement. almost never
invalidates the contract

o Mistakes in equity
Courts were abolished in 1908
1. Retification: Both parties agree on X, contract says Y, court just changed
contract to reflect the terms without the mistake
2. Refusal of specific performance: Court refuses an action to a party wanting to
uphold the other party bound to the contract.
o Eg, if there was misrepresentation.
o Deny v Hancock
3. Recission: To recover what has been performed on a fraudulent contract. This
happens after part performance of the contract.

South African Law

o 2 rival ideas of mistake
Potheir & Natural Lawyers: A sufficient mistake or intent or will, will make a
contract void
English Lawyers: only expressed mistakes will invalidate a contract.
o Mistakes in law:
Common Mistake

 Mutual mistake
Unilateral mistake
o Mistakes in Equity
2 actions that the court of equity can take
Refuse specific performance
Unwind what had been done already (recission) happens if there is
fraud
o Deny v Hancock
o Garrand v Frankel
th
o Mistakes in 19 century law
Maritz v Pratley (1984)
At an auction Pratley bids for an item. But thinks he is getting the table
that item is standing on as well.
Pratley refuses to pay, Maritz sues him for the price
Buchanan
o Onus is on the buyer to acquaint himself with the items being
sold was he negligent for not acquainting himself?
o Plaintiff said that it had nothing to do with negligence, the issue
is whether there was consensus in the contract.
De Villiers
o Question is whether or not there was a sale cannot be a sale
unless the parties agree on the same thing if there is no sale,
the amount cannot be payable.
o There must be clear and definite proof of a mistake.
o If mistake is coupled with gross negligence, the court wont find
in favour of the mistaken party
o There appears to be no negligence here
o The appeal is dismissed because it was a mistake with no
negligence, therefore was no consensus, therefore there was
no sale. Appeal was dismissed.
Logan v Beit
Beit buy shares from Logan on the grounds that he would receive certain
other rights with the purchase. Misunderstood term cum rights.
No exact definition of the term cum rights.
De Villiers
o Plaintiff could not prove that the defendant understood the
contract
o According to our law, a reasonable error will entitle the
reasonable party to the restitution (restore both parties to position
they were in before).
o De Villiers defines cum rights in favour of Logans (seller)
definition it is a unilateral mistake only a mistake on
behalf of Beit.

o One party puts their argument forward in English law, the other
party responds in Roman Dutch Law.
o Due to the facts it appears that the facts were not reasonable and
hence to error that would entitle the plaintiff to relief
Smith
o Plaintiff is not entitled to set aside the contract because there was
no consensus because there was no reasonable mistake, and
hence no justa causa to set it aside (no fraud or anything like
that)
o Appeal succeeded. Logan (seller) succeeds.

o Contractual mistakes in modern SA law

George v Fairmead
George signs into hotel, makes an oral agreement with the receptionist
and signs what he is told is the registry.
But it was actually a contract with terms
His stuff gets stolen from his room, he tried to claim from hotel.
Hotel says that he signed contract limiting hotels liability.
It is a unilateral error signed but didnt know what he signed.
Fagan
o Issue: when can it be just for an error to repudiate a contract.
o Answer: it is just, only if the error was made due to the other
parties fraud or misrepresentation (innocent or not) Judge said he
must show his error was Justas in order not to be bound by
contract
o If you know you are signing a contract, even though you are
misguided, you are still bound.
o But the problem comes in that George did not know he was
signing a contract thought it was a register.
o The test to work out if he knew it was a contract is the reasonable
man test would a reasonable man know he was signing a
contract
o Court decides that it was not reasonable for him not to have
known it was a contract his ignorance can not be counted as
Justus error.
o Appeal is dismissed George is held to the contract.

National overseas distributers corporation v Potato board

Unless party can prove an Justas error, they will be held to the contract

Liability for the infringements of personality rights

General Inuria

Intro
o Started off at the beginning on BC, there was one general edict for inuria
only for serious physical assult
o Progressed to special edicts for public shouting, sexual harassment,
definition
o All special edicts were conglomerated together to form one wide-range
general concept of inuria. had in common insult or contempt.

Scope of inuria
o Intentional act meant to offend and violate someones dignity

What falls under inuria

o Breaking a distinct law
o Contrary to public morals (contra boni mores).
Ie. Shouting
o Something done with malicious intention, even if it is lawful.
o Pomponius: If someone does anything to prevent you doing something that
others are allowed to do, he is saying you are worth less than others
inuria
o (In roman law, truth was not a defence.)

What intention is required to constitute inuria

o Defendant must have intended to bring out the consequences if I hit you
to teach you a lesson, but poke your eye out, I am not liable under inuria.
o Do you need an insulting intention?
If its unlawful No insulting intention required
If its lawful intention to insult if required

Actio Iniuriarum Privacy

In SA law AI protects 3 personality right

o Corpas Body
o Fama - Reputation
o Dignitas dignity
There is a move to include other personality rights under
dignitas, including privacy
Privacy can be invaded in 4 ways
1. By intrusion into the private sphere
the law defines private as something which a reasonable man would
like to keep to himself.
Obtaining something that is meant to be private under this definition.

Prinsloo V RCP Media LtD, t/a repport 2003.

o Newspaper obtained pictures of a 3some, they had gotten them
legally, and had no intent to publish them, but Plaintiff argued
that just keeping the pictures was an invasion of privacy was a
looming threat
o Court agreed (in obiter) with Plaintiff very persuasive, but not
binding
2. Publication of private facts
Mhlongo v Bailey 1958
o Newspaper published article about a singer saying she was a slut
o Court held that article was an act of aggression towards the
singers dignity
o In Roman Law it was injury and insult, in Modern law it is
invasion of privacy by publication
3. Placing someone in a false light
Kidson and Another v SA Associated Newspapers Ltd
o 3 Nurses training in a hospital
o Newspaper comes to write article to raise funds for hospital
o They take a picture of the 3 nurses and the headline says Lonely
nurses need boyfriends
o One nurse, other 2 engaged nurses sue for definition
o Defination does not succeed, but court ruled that there an insult
in modern terms this is invasion of privacy by false portrayal.
4. Apprpriation
Taking someones photo or something similar and using it without
consent for ones own benefit.
Okeeffe v Argus printing and publishing Co Ltd
o Okeeffe was a radio presenter had her photo taken for a news
story was actually used for a gun shop.
o No authority on the matter had to be judged according to
modern conditions or thought, taking into account community
values, nature of photograph, plaintiffs personality.
o Therefore it can, but is not always be, an infringement of dignity
ie. If the picture was used for an AIDS group it would be a
different case.
o In reality, every person is protected.
Personal Injury
Kidson v SA newspapers association
o 2 claims
Injury of dignity (succeeded)
Injury of reputation/ defamation (Failed)
o Idea of Defamation (crucial to understand to understand why claim failed)

Words are seen as defamatory ifif they lower the plaintiff in the
eyes of right thinking people.
Court establishes what the ordinary meaning of a word is (the way
the average person understands a word) But there is the
possibility for a secondary meaning of circumstances.
It is up to the plaintiff to prove secondary meaning and to show that
the 3rd party (people reading advert) understood that meaning as well
Kidson argued that there was a secondary meaning, but could not
prove secondary meaning. claim failed.
They could not prove it because they could not show that any of the
readers knew that they were married or engaged.
o Dignity claim: to injure ones dignity, there must be insault
To succeed in claim
Whether particular facts constitute a particular deed
Whether that deed as wrongful in the 1st place
Whether the deed is an iniuria
o Decision about wrongfulness
o Was there fault
Whether deed is actionable
An act doesnt need to be wrongful to be defamation. But it does
require wrongfulness in regard to dignity
No need to prove 3rd knowledge of insult, because you can be
insulted without the 3rd party knowing.
o Remedies for insulted party
Actio legis aquillia must prove negligence or intention
Actio inuriarum Must prove intention
Up until the 50s intention (for both) needed to be proved,
however in the 50s a rebuttable assumption that intention exists
was introduced.

Negotiorum Gestio

Unauthorized admin of the affairs of another

Requirements in Roman Law for a successful action
o Management of ANOTHERs affairs
o Voluntary and unauthorized (else its a contract)
o Person for whom something is done is absent or unable to consent.
o Management must be done t benefit other party, not oneself
o Must be reasonable at the time, not against the wishes of the person on whose behalf
the wishes are taken
The values underlying NG
o Social morality of the roman patriciate (Good Samaritan action)
They get their money back because they are just doing what the other person would do
in that situation.
o SA Law: Person who fits these requirements is entitled to his money back
o English law .says person gets nothing
Officious intermedlar
Infringing on the economy of others
Typical situation of unauthorized admin
o Paying debt of another
o Providing support to a dependent of another person
o Saving the property of another
o Saving someones life (discussion)
The reciprocal rights & duties of the parties
Gestor (helper person) may claim all his expenses whether his attempt was
successful or not Actio negotorium gestorum conraia
Dominus (helped person) can claim expenses from gestor for harm that
otherwise could have been prevented action negotorium gestorum director
The extended action of the NG Sometimes NG action is extended to an enrichment action to
fit more circumstances.
o Gestio acts partly in own interest Gestio can only claim for the amount that he spent
on protecting the dominuss interests.
o When the gestio acts in the belief that he is acting in his own interests.
o When a minor is involved to protect the minor, the gestio can only claim to the
extent that the he has been enriched. (for an adult, the gestio can claim back all he
spent)
o When the gestio act against the expressed wishes of the dominus
Doubt over whether there is an action for this.
Middle Ages
Minority view: Gestor acting against the wishes of the
dominus should have an enrichment action (Martinus)
Roman Dutch
Person should get reimbursed (voet)
SA Law

Standard Bank Financial Service v Taylam 1979 agrees

with Voet & Martinus (who are in minority) that gestor
should be reimbursed.

Standard Bank v Taylam

o There are situations when you might not want someone to pay your debt if they do,
it is harmful to you therefore the NG is offered

Claims arising from the death or injury of the breadwinner

Aquillian action is a claim for damage to property
Actio inuriarum is a claim for injury to personality (body, reputation, dignity)
could injury to a person be Aquillian Action? No, you dont own your body.
In Roman Law
o The dependents of a personal wrongfully killed or injured by another DID NOT
have an action to make good
o Exceptions
Funeral costs (if dead)
Medical expenses and loss of income (while the person is injured) ****
Roman Dutch Law
o Killer had liability for
Burial costs
Other costs caused by crime
Compensate dependents who were maintained by breadwinners labour.
SA law
o Victor v Constantia Insurance co Ltd
o Special concerns
Position of widows of customary marriages
Position of widows of Islamic marriages
Divorces spouses
o Injurer must return breadwinners family to position they would be in if the
breadwinner had not died.
Requirement for a claim
o Person claiming must fall under one of these categories
Widow
Children
Parents (if they cant support themselves)
Grandparents (if no parents, and they cant support themselves)
Grandchildren (if no parents)
Siblings (not step siblings)
o The breadwinner must have been in a position of maintain his family.
If temporarily unemployed courts look at earning potential
If money is earned through illegal work court looks at legal earning
potential
o Claim arises at time of death
If family dont need support at time of death, but only later, then they don
get support
o Dependents of a customary law marriage
Considered the same as a normal marriage

If more than one wife then wives must band together to claim doesnt
really matter because breadwinners salary was supporting them all
anyways.
o Divorced spouses
Maintenance is demanded by court order.
Divorced wife can still get money from injurer because of the legal duty of
support
o Muslim marriages
Considered the same as normal SA marriages
Amod V Multi Vehicle Fund

Victor v Constantia Insurance 1985

o Father killed in car accident
o Mother brings action on boys behalf for loss of support.
o But boy is adopted after fathers death insurance company claims that the father no
longer has a duty of support over boy, because he has been adopted. Therefore injurer
shouldnt have to pay maintenance. child should be treated as widow who remarrys
o Court decided amount of maintanence as one lump sum and takes into account things like
chances of remarriage etc.
o Court had to decide whether to consider the circumstances occurring between the accident
and court date, and must decide whether the charity of a 3rd party (adoptive parents) must
be taken into account.
o What if someone gives child lots of money after his dad dies? does that mean injurer
doesnt have to pay maintenance?
o Answer: circumstances in between should not be considered. Child should not be punished
for his good fortune that someone else helped him.