Case Law - Descriptions Flashcards
Facts: Bellingan v Clive Ferreira & also name case referenced in the case
Partnership agreement - stated profits and losses will be borne in proportional shares. Had a loan with a bank and one partner died. His wife to cession of the bank’s claim and wanted to claim the debt from the partners saying they were liable jointly and severally.
Partners held that she was only allowed to claim their share as agreed upon in the initial contract.
Application: Bellingan v Clive Ferreira
Partners held that she was only allowed to claim their share as agreed upon in the initial contract. The court held that the wife could only claim from each partner his aliquot share. Also mentions Gerber v Wolson - 7 persons in a contract of surety. One signatory paid the creditor in full and tried to claim the 6/7th of the full amount from one of his co-debtors. The court held that each debtor was only liable for his aliquot share of the amount paid. Cannot escape contractual consequences of the partnership agreement and can’t profit from the partners.
Hook: Bellingan v Clive Ferreira
Liability of partners must be determined with regards to the underlying agreement
Facts: Bob’s Shoe Centre v Heneways Freight Services
B imported a consignment of shoes from Portugal and appointed Heneways to organise. There were a number of duties. When the shoes arrived, H gave the incorrect importer’s code number to customs and the goods were not released. Process took 2-3 days, and when they finally went to pick up the goods, they were told it was stolen. Supervening impossibility of performance. H only partially performed and the question was whether B should pay for the partial performance?
Application: Bob’s Shoe Centre v Heneways Freight Services
Court said that it depends if the performance was divisible. In this regard the parties’ intent is important. Where there are no express agreement, the nature of performance is important to determine. B argued that it was indivisible, one performance to bring in goods and get them to their warehouse. The court held that the contract subdivided the duties and assigned a specific amount to be paid to each. B had to pay for partial performance.
Hook : Bob’s Shoe Centre v Heneways Freight Services
Furthermore, divisibility does not depend on divisibility of counter performance, fact that counter performance is divisible, creates a presumption that the performance is divisible provided that every distinct aspect of performance can be related to every distinct aspects of counter performance.
Facts: Stocks & Stocks v TJ Daly
S agreed that T would transport their mobile crane. During transport the crane was damaged. S wanted to institute breach of contract and claim for damages. T said there was a owner’s risk clause and that they were thus not liable. Contract of bailment = naturalia = T liable for any damages while in their safekeeping. But T said the owner’s risk clause excluded the naturalia.
Application: Stocks & Stocks v TJ Daly
Court held he who alleges must prove, thus the plaintiff S = absence of risk clause. S said they waiver right to claim damages and thus the onus rest on T to prove. Court held that there was no waiver and that the onus does not shift
Hook: Stocks & Stocks v TJ Daly
S must prove the contract of bailment didn’t have an owner’s risk clause, but T has burden of rebuttal. 50/50 argument. Plaintiff needs to show on balance of probabilities their argument more probable, while defendant just need to show 50% chance as likely.
Facts: Wilkins NO v Voges
Stronghold (represented by Wilkins) purchased property from Voges to develop a township. And pay in instalments. After first payment S discovered a provincial road was planned across the land and would stop them from developing the township. S refuses to pay balance and then say they cancelled the contract and demands the first payment back. Says there was a breach of tacit warranty.
Application: Wilkins NO v Voges
Contracts are comprehensive and thus difficult to read in a tacit term.
Facts: South African Forestry Co Ltd (SAFCOL) v York Timbers
SAFCOL supplied York with logs for their sawmill by means of a long term contract. The contract contained a clause in terms of which the supplier could raise the price of logs. They also made provisions if they could not agree on a price (refer to the Min and then arbitration). York kept frustrating SAFCOL and kept the prices low to undercut their competition. When they referred to the Min, Y said no we still have time to agree. When referred to arbitration, Y said no didn’t follow due process and referred to the Min. SAFCOL wanted to cancel the contract on basis of breach of contract. Basis of acting in accordance of the dictates of good faith, fairness and reasonableness.
Application: South African Forestry Co Ltd (SAFCOL) v York Timbers
Court asked if there was an implied term in the agreement to act in good faith and was that term breached by Y. Brisley confirmed that a generally duty to act in good faith does not exist.
