CON | General & Sports

Question 1

Discuss ‘contract’

Answer 1

1. There must be a PROMISE to fulfil an OBLIGATION
2. Obligationary agreement (not an informal agreement)
3. Intention
4. Legal fact
5. Enforceable at law
6. Legal bond

Question 2

Promise to fulfil an obligation

Answer 2

A meeting of the minds (minds at idem)

Question 3

Obligationary agreement (not an informal agreement)

Answer 3

If you do not comply with the agreement, you are not complying with the obligation and there will be legal consequences

Question 4

Intention

Answer 4

• To bind yourself legally

- If you repudiate, there will be legal consequences

Question 5

Legal facts

Answer 5

• Something that is true in law
• Something to which the law attaches consequences (even if the parties do not know what the consequences of breach will be)
• Even if parties do not provide remedies in the contract, naturalia will step in (specific performance, cancellation, and/or damages)

Question 6

Enforceable at law

Answer 6

The innocent party can rely on a remedy at law

Question 7

Legal bond

Answer 7

Same as legal obligation, in essence.

Question 8

What is pacta sunt servanda?

Answer 8

One is bound by a contract into which one entered freely, willingly, while of a sound mind (ie. no duress, misrep, etc.)

Question 9

Discuss ‘obligation’

Answer 9

1. Legal bond
2. Right o performance (creditor) = “claim”
3. Delivery of thing, doing of something or refraining from doing something = “debt”
4. Creditor’s right: Personal right(performance by another person) - creditor is personally obliged to receive performance from another person
5. Entails a right and duty (ie. reciprocal)

Question 10

What are the types of obligations?

Answer 10

1. Natural obligations: Cannot be enforced in a court of law (unassisted contract of a minor; certain requirements are not met)
2. Civil obligations: Can be enforced by a court of law (eg. contract of employment)

Question 11

What is the difference between contract and obligation?

Answer 11

• Obligations are created as a consequence of entering into a contract.
• Contract = piece of paper
• Obligation = legal creation

Question 12

Where does our law of obligation come from?

Answer 12

1. Legal bond with RIGHT and DUTY
2. Bond must be recognised LEGALLY
3. Examples of ‘obligations’ which are not juridically recognised:
   a. Romantic date;
   b. Acceptance of dinner invitation.

Question 13

What is the difference between a legal duty and obligation?

Answer 13

1. “Legal duty”: Uphold law by not stealing
2. Refrain from damaging private property
3. Comply with traffic rules
4. These ‘duties’ create NO obligation, because they do not create any RELATIONSHIPS (in a legal-technical sense)
5. Duties may, however, lead to obligations
6. Eg: Non-compliance with traffic rules leads to accident with other vehicle. This constitutes a delict, which in urn creates an obligation.
   An obligation is the CONSEQUENCE of a valid contract.

Question 14

How does the Constitution come into play?

Answer 14

1. Pacta sunt servanda
2. “Probably the most important foundation of the SA law of contract” - Judge Hefer
3. Shifren.
4. Brisley v Drotsky

Question 15

What must a bond have?

Answer 15

The law must attach consequences to it.

Question 16

Which 3 cases are relevant to athletes contracts?

Answer 16

1. Troskie
2. Santos v Igesund 2002
3. Santos v Igesund 2003

Question 17

What do the athletes’ contract cases deal with?

Answer 17

• What is an athlete’s contract?

- If a contract is breached, what will be the most applicable and effective remedy?

Question 18

Which 3 cases relate to restraints of trade?

Answer 18

1. Highland Park Football Club v Viljoen
2. Union Rugby Belge des Societes de Football v Bosman
3. Coetzee v Comitis

Question 19

What are the 3 subdivisions of the athletes contract?

Answer 19

1. Contract of employment (locatio conductio operarum)
2. Contract between independent contractor and organisation that employs him (locatio conductio operis)
3. Contract of agency

Question 20

What are the sources of SA labour law?

Answer 20

1. Common law
2. Employment legislation
3. Constitution
4. Bill of Rights

Question 21

What is an athlete’s contract current seen as in SA?

Answer 21

As an employment contract

Question 22

Discuss the shift in balance

Answer 22

1. Cameron JA in Brisley v Drotsky
2. Public policy nullifies agreements offensive in themselves.
3. In its modern guise, ‘public policy’ is now rooted in our C and the fundamental values it enshrines.
4. These include human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism.
5. It is not difficult to envisage situations in which contracts that offend these fundamentals of our new social compact will be struck down as offensive to public policy.
6. They will be struck down because the C requires it, and the values it enshrines will guide the courts in doing so.
   - To determine public policy, look at the purport of the C.

Question 23

What are the elements of the contract of employment?

Answer 23

1. Service of a personal nature
2. Employer must pay remuneration
3. Sevices must be defined and controlled
4. All requirements of the common law contract must be complied with

Question 24

Discuss the elements of a ‘sports contract’ as listed by Prof. Louw

Answer 24

1. “Personal sporting services” - which incorporates ‘exceptional talent’
2. Subject to employer’s control - these contracts are very strict (eg. can’t bungy jump)
3. Absorption of player’s services
4. Remuneration - an athlete only has limited time (ito age) to render their services
5. Disciplining of players
6. Relationship is one of employment
7. “Dominant impression” is one of employment