contracts Flashcards
THE WHOLE AGREEMENT
This document contains the whole agreement between the parties.
No party will have any right or remedy arising from any undertaking, warranty or representation which is not included in this document.
VARIATION
This contract or any part of it can only be waived, varied, added to or cancelled by further written agreement between the parties and signed by the parties.
NON-VARIATION (Shiffren)
No variation of this agreement shall be of any force or effect unless reduced to writing and signed by the parties to this agreement.
RELAXATION OF TERMS
No relaxation of the terms of this agreement and no indulgence which one party may grant to the other will in any way operate as an estoppel against the former party or be deemed to be a waiver of any of his rights or in any other way limits, alter or prejudice those rights.
JURISDICTION OF THE MAGISTRATE’S COURT
Each party consents in terms of Section 45 of the Magistrate’s Court, 1944 to jurisdiction of the District Court in respect of any proceedings pursuant to this agreement.
ADDRESS OF SERVICE / DOMICILLIUM
The parties to this agreement choose the following addresses and telefax numbers for purposes of this agreement.
both parties:
name, physical, postal, telefax, email
COSTS
The costs of and incidental to the negotiation and preparation of this agreement, including VAT and other payable duty, must be borne by the parties in equal parts
BREACH
In the event of either party being in breach of the terms of the agreement and failing to remedy such breach within a period of 10 days after receipt by it of a written notice requiring such breach to be remedied, the party aggrieved thereby shall be entitled, without prejudice to any other rights which it may have in terms of this agreement to:
1.1 Claim specific performance of the terms of the agreement as well as damages;
1.2 Cancel this agreement and claim and recover damages; or
1.3 Keep this agreement in force and recover such damages as it may have suffered as a result of the breach.
CESSION
The Creditor may not cede its rights and delegate any obligations in terms of this agreement without obtaining the prior written consent of the Debtor
CONFIDENTIALITY
The parties agree to keep the content of this agreement confidential and undertake that they will do everything in their ability to protect the confidential nature of the agreement.
EXECUTION OF THE AGREEMENT
The parties undertake to do and procure whatever is needed to implement the terms of the agreement.
RESTRAINT
The seller will not for a period of two years, calculated from the effective date, operate a business or have an interest in/albeit direct or indirect in any bottle store business in Gauteng.
The seller agrees that this restriction is fair and reasonable having regard to the nature of the business purchased, the duration thereof and the area to which it applies.
Estate Agent Commission Clause
Purchaser Confirms that the contract was entered into without the purchaser being introduced to the seller- directly or indirectly- by the estate agents
as a result- purchase price is reduced- estate agents Commission deducted
purchaser indemnifies the seller against any claim by the estate agent for Commission
the purchaser will assist the seller with any intended litigation by the estate agent
seller will be free to deal with the matter as he deems fit
any costs or charges or judgment will be recoverable from the purchaser
SUSPENSIVE CONDITION
This agreement is conditional upon the purchaser obtaining a bond for 80% of the purchase price from a financial institution (1), within 30 days from date hereof (1). If the bond is not obtained this agreement shall be null and void (1) and neither party shall have any claim against the other arising here from (1)
RESOLUTIVE CONDITION
Should the purchaser be advised in writing (1) that his application for a bond for 80% of the purchase price has been unsuccessful or should the purchaser not be successful in obtaining the said bond within 21 days from date of signature hereof (1) this agreement shall terminate (1) and each party shall, insofar as any terms of this agreement have been implemented, be obliged to restore the other into the same position as he would have been had the agreement never been concluded (1).
Lock, Stock and Barrel Clause
- The seller and purchaser will do a stock taking together at close of business on the day preceding the effective date.
- The seller’s statements of account and invoices for stock will serve as proof of the cost price thereof.
- The parties will reduce the cost price of the stock to writing and will sign the document.
- The parties will take all reasonable steps and cooperate fully with each other to complete the stock taking and to calculate the stock taking and to calculate the cost price thereof before the effective date
Restraint of trade Clause
The seller will not for a period of three years, calculated from the effective date, operate a business or have an interest direct or indirect in any restaurant business in the Magistrates District of Kuruman. The seller agrees that this restriction is fair and reasonable having regard to the nature of the business purchased, the duration thereof and the area to which it applies
Essentialia of : Sale of a Business as a Going Concern
Purchaser / Seller are
Purchase price – how this will be paid
Assets comprise of the business
Sold as a going concern - VAT Zero rated
Section 34 of the Insolvency Act – trader must publish (seller)
Lock, stock and barrel – stock – how it will be calculated, paid, done
Suspensive conditions (non-disclosure, gambling, lease, liquor license, VAT)
Section 197 of LRA
Warranties
Delivery of documents
Essentialia of : LEASE AGREEMENT
Parties – Landlord / Tenant
Property
Payment – amount and when it must be paid – is it just rental or additional expenses?
Period (renewal clause)
Lease need not be in writing however, it must be in writing if it is a long lease (more than ten years). Less than 10 years – protected by huur gaat voor koop
Essentialia of : PARTNERSHIP AGREEMENT
Each partner must contribute;
All must share in profits and losses;
The purpose must be to conduct business; and
The purpose must be to generate profits.
A CESSION – OUT AND OUT
The Cedent and Cessionary. Cedent sells the debt and cedes the debt and Cessionary receives the debt. (Mercedes – Cedent) (ABC Collectors – Cessionary)
Cedent cedes to the Cessionary all existing book debts (or the book debts referred to in Schedule A attached hereto) irrespective of how they arose.
CESSION AS SECURITY
Cessionary (creditor) lent and advanced money to the Cedent (debtor) and the Cedent has secured repayment of the loan (gives security) by ceding existing and future book debts of the business to the Cessionary.
Cessionary lent and advanced R600, 000.00 to the Cedent in terms of a contract entered into (the loan).
what warranties should be listed in an out and out cession?
the cedent warrants and undertakes that-
1 he has not entered into an agreement restricting or excluding the transferability of any of the book debts;
2 he has no knowledge of any counterclaims that may extinguish any of the book debts
3 he has not prior to this cession, ceded any of the book debts to any other person or concern
what information should a ceded give ito book debts
within 7 days of signature of this agreement a full list of all debts of the business reflecting:
- their names, occupation and addressed
2 their amount of indebtedness
3 particulars of the agreement
4 whether the indebtedness is on open account of on creding
which headings should be in an out and out cession
- parties
- background
- cession
- Delivery of documents evidencing book debts
- warranties by the cedent
- Notice to debtors
- information regarding book debts
- signed by the cedent and cessionary
who are the parties in a suretyship
- the sureties
- the principal debtor
- the creditor
what is a special power of attorney
when you want to grant someone limited authority to act on your behalf for a specific purpose or task, such as selling or purchasing property, or managing a particular business transaction
