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BER 210 - SU 2: General principles of the law of contract > Consensus > Flashcards

Consensus Flashcards

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1
Q

Only conditions where consensus can exist

A
  • parties have serious and true intention
  • intentions are identical
  • where there is creation of a legal obligation with certain legal action
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2
Q

Categories of consensus

A
  1. True consensus
  2. Assumed consensus
  3. …By operation of the law
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3
Q

Categories of disclosure (of intention)

A
  • invitation
  • offer
  • acceptance

(disclosure usually occurs during negotiations, where intention is made clear)

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4
Q

Disclosure: The offer (definition)

A
  • a declaration of intent by prospective party
  • contains proposal regarding the contract
  • mere acceptance bring contract into being
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5
Q

Requirements for something to be considered an offer

A
  • offeree must be aware of offer
  • all stipulations and important elements must be contained in offer
  • offer is clear, certain and unambiguous
  • no formalities required (unless otherwise stated)
  • offer must be made with intention of creating legal obligation
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6
Q

Ways an offer may be terminated

A
  • Rejection
    • – (express, doesn’t accept, counter-offer)
  • Revocation
    • – (revoked = before acceptance, withdrawal - after offeree is aware of offer)
  • Lapse of time
    • – (not accepted in specified time period)
  • Death of offeror/ offeree before acceptance
  • Contractual incapacity
    • – (offeror/ offeree loses contractual capacity before contract conclusion)
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7
Q

Disclosure: Acceptance

A
  • unqualified declaration of intent
  • approval without reservations
  • with purpose of reaching consensus
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8
Q

Requirements for something to be considered a valid acceptance

A
  • accepted only by offeree
  • clear, certain, unambiguous
  • no formalities required unless otherwise stated
  • acceptance is identical to terms of offer
  • offeree can only accept offer they are aware of
  • acceptance only effective once offeror is notified that offer has been accepted
  • offeree must have serious intentions
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9
Q

Special offers

A
  • Public offers
  • Auctions
  • Options
  • Negative offers/options (prohibited by CPA, void)
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10
Q

Rules of auction, according to the Consumer Protection Act

A
  • if auction is in reserve, a notice in advance must be provided
  • the owner and auctioneer cannot bid at auction unless notice has been given in advance (otherwise could be declared fraudulent)
  • when goods are sold in lots, each lot is sold separately
  • auction is complete only when auctioneer states its completion
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11
Q

Naturalia

A
  • when consensus is reached expressly or through conduct
  • apply automatically
  • are not dependent on agreement
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12
Q

Essentialia

A
  • minimum characteristics of a specific contract
  • distinguish specific contract from others
  • not validity requirements
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13
Q

Incidentalia

A

Terms agreed to by parties amongst themselves for their purposes.

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14
Q

Consensus through conduct

A

Declaration of intent made without words or writing but through behaviour (conduct)

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15
Q

Express consensus

A

Declaration of intent made by words or through writing

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16
Q

Consensus through operation of law

A

Consensus does not have to be reached on terms that are already stipulated in legislation, common law or trade usage.

17
Q

Suspensive vs Resolutive conditions

A
  • suspensive condition —> performance can only be claimed after condition is fulfilled
  • resolutive condition —> contract remains in existence until the occurrence of an uncertain future event
18
Q

Suspensive vs Resolutive terms

A
  • suspensive term —> when some or all performances in contract can only be performed after a (un)certain future event happens
  • resolutive term —> contract’s existence depends on a (un)certain events occurrence
19
Q

Assumption and Guarantee

A
  • assumption
    • –> both parties assume that a certain fact exists and forms part of the contract
    • –> refers to something that has happened in the past (differs from term and condition)
  • guarantee
    • –> contractual undertaking in regards to the presence or absence of legal fact
20
Q

Requirements that must be met before a court can read a missing stipulation into the contract

A
  • inclusion of the term must be fair and reasonable
  • term must be based on common intention of parties
  • only reasonable interpretation of the contract must show that both parties would have still kept the term in the contract had they been aware of its omission.
  • the term must be necessary for business efficiency of contract
  • clear and unambiguous contents
  • inclusion of the term must be desired AND necessary.
21
Q

Effect of Consumer Protection Act (enforcements)

A
  • right to plain and understandable language
  • unfair, unreasonable or unjust terms
  • certain transactions, agreements, terms and conditions that are prohibited
  • right to return goods
  • right to cancel advanced reservations or orders
22
Q

CPA: Right to plain and understandable language - Factors that determine if consumer could be expected to understand contents of contract.

A
  • context, comprehensiveness and consistency of document
  • organisation, form and style of document
  • vocabulary, usage and sentence structure “ “
  • use of any illustrations (incl. headings)
23
Q

CPA: Unfair, unreasonable or unjust terms - Terms and conditions that are considered to be unfair, unreasonable and unjust.

A
  • excessively one-sided (in favour of a non-customer)
  • so adverse to customer that it is unequitable
  • where a consumer relied on false/misleading/deceptive representations
24
Q

CPA: Prohibited transactions, agreements, terms and conditions - Terms and conditions that are seen to be prohibited.

A

pg 34 of actual textbook and pg 43 of pdf

25
Q

Four theories that refer to the four stages of acceptance

A
  • declaration theory
  • expedition theory
  • reception theory
  • information theory
26
Q

Declaration theory

A
  • states contract is concluded when and where the offeree expresses/declares their acceptance
  • no application in our law
27
Q

Expedition theory

A
  • states contract is concluded when and where the acceptance of the offeree has been sent out to the offeror
28
Q

Reception theory

A
  • states contract is concluded when and where the offeror receives the offeree’s acceptance
29
Q

Information theory

A
  • states that a contract is concluded when and where offeror is informed about the offeree’s acceptance
30
Q

Theories: General rule of South African practice

A
  • information theory is applied as general rule in South African law (when offeror is informed of acceptance)
31
Q

Theories: Exceptions to general rule of South African law

A
  1. If old fashioned way of communication is used (excl. telephone and fax) expedition method is used provided:
    - -> offer AND acceptance made through post
    - -> offeror does not prescribe another method of acceptance in offer
    - -> general postal services is operational
    - -> letter of acceptance bears correct address
  2. Ascertainment theory
    - -> contract concluded at the place and time acceptance letter was posted
  3. Data message
    - -> contract concluded when data message has entered information systems where offeror can retrieve and process it
32
Q

Factors that influence consensus

A
  • Error (void)
  • Misrepresentation (valid but voidable)
  • Duress
  • Undue influence
  • Commercial bribery
  • Right to fair and honest dealing
33
Q

Factors that influence consensus: Error

A
  • error in motive

- error regarding contents or existence of contract

34
Q

Factors that influence consensus: Misrepresentation

A
  • fraudulent misrepresentation
  • innocent misrepresentation
  • negligent misrepresentation
35
Q

Factors that influence consensus: Duress

A
  • vis absoluta —> contracting party become temporarily contractually incapacitated because of fear (null and void)
  • vis compulsiva —> intimidated party enters into contact knowingly to prevent potential danger (valid but voidable) - elements on p. 41 of textbook and p50 of pdf
36
Q

Factors that influence consensus: Undue influence

A
  • valid yet voidable
  • requirements:
  • -> one party obtained undue influence over other party
  • -> influenced weakened powers of resistance and rendered their will compliant
  • -> other party used influence in unscrupulous manner
  • -> influence induced conclusion of contract
  • -> contract must be damaging/detrimental to injured party
37
Q

Factors that influence consensus: Commercial bribery

A

p. 41 of textbook

38
Q

Right to fair and honest dealing

A
  • if CPA is applicable, must apply
  • CPA does not override common law
  • p. 42 of textbook and p. 51 in pdf

BER 210 - SU 2: General principles of the law of contract (9 decks)

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