STUDY UNIT 9

Question 1

NUMBER OF PARTIES:

Answer 1

there will always be at least two parties to a contract.

Question 2

MULTIPLICITY OF PARTIES:

Answer 2

where there are multiple parties to the contract, in respect of each obligation created by the contract, there might be a number of co-debtors or co-creditors involved on either side of the obligation.

Question 3

IT BECOMES NECESSARY….

Answer 3

it becomes necessary to determine the share of liability of each co-debtor, and the share of entitlement of each co-creditor.

Question 4

This determination depends on various FACTORS:

Answer 4

1. the intention of parties
2. nature of the contract
3. nature of the performance

Question 5

DIVISIBILITY OF PERFORMANCE:

Answer 5

a performance can either be divisible or indivisible.
-whether a performance is divisible or not is dependent not only on the nature of the performance but also on the intention of parties.

Question 6

SIMPLE JOINT LIABITY:

Answer 6

means that each of the debtors is liable only for a proportionate share of the performance, and these shares are presumed to be equal.

Question 7

JOINT AND SEVERAL (IN SOLIDUM) LIABILITY:

Answer 7

the characteristic feature of liability in solidum is that each of the co-debtors is liable for the full amount of the debt, and the creditor can accordingly claim the full debt, or any lesser amount, from any one or more of them.

Question 8

PAYMENT OF FULL DEBT:

Answer 8

Payment of the full debt by one of the co-debtors discharges the debt completely.

Question 9

COLLECTIVELY JOINT LIABILTY:

Answer 9

where co-debtors are liable to make a performance jointly as a collective, the creditor may not demand performance, in part or in whole, from any one of the debtors individually.

Question 10

THIS COLLECTIVE FORM:

Answer 10

this collective form of liability will only arise when the performance is indivisible.

Question 11

WHAT IS AGENCY?

Answer 11

a principal (P) authorizes another person, the agent (A), to represent him in negotiating a contract with a third person (3p).

Question 12

WHAT IS REPRESENTATION?

Answer 12

representation is a phenomenon that occurs when one person (A) concludes a juristic act on behalf of another (P).
-this may only occur when A has the necessary authority.

Question 13

JURISTIC REPRESENTATION:

Answer 13

this power to represent may be granted by the law itself.

Question 14

RELATIONSHIP BETWEEN PRINCIPAL AND THIRD PARTY:

Answer 14

the question of whether consensus was reached will be determine with reference to the state of mind of A, rather than that of P, since it is A who does the negotiating for P.

Question 15

THREE EXCEPTIONS:

Answer 15

1. where P subsequently ratifies the contract, which is permitted only if A had professed to act as an agent, and if P was in existence at the time when the transactions was concluded.
2. where P is estopped from denying that A was authorized to conclude the contract.
3. Makate v Vodacom, P can be held bound despite the lack of actual authority on the part of A.