Theme 2 PT 3 Continued

Question 1

Error in substantia/qualitate

Answer 1

1) Mistake re an ATTRIBUTE OR
CHARECTERISTIC of the
SUBJECT MATTER of the
contract- i.e. it does not render the
contract void.

2) USUALLY NOT REGARDED AS A
MATERIAL MISTAKE

Question 2

Error In Motive

Answer 2

1) Mistake as to the party’s REASONS
for entering into the contract.

2) NON-MATERIAL

Question 3

NON-MATERIAL MISTAKE:

Answer 3

1) Does not affect consensus.

2) If parties are in agreement regarding material terms – contract comes into being.

Question 4

Khan v Naidoo

Answer 4

1) The mistake must, therefore, be one which touches the agreement in a material or fundamental respect, for example, in relation to its subject-matter… For negation
of consensus

Question 5

Allen v Sixteen Stirling Investment (Pty) Ltd

Answer 5

1) The court found that the plaintiff’s mistake was justus. [A
fair or reasonable mistake].

2) Material: [Error in corpore: Subject matter.]

Question 6

Shepherd v Farell’s Estate Agency:

Answer 6

He mistakenly thought that the contract was substantially in terms of the advertisement and this mistake was
caused by the advertisement itself and the agency’s failure to draw attention to the conflict between the advertisement and the contract

Question 6

Sonap Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v Pappadogianis:

Answer 6

1) Justus error:

2) Material and Reasonable.

3) Allen v Sixteen Stirling Investments.

4) Material: Subject matter.

5) Reasonable

Question 7

Kok v Obsorne:

Answer 7

1) The seller accepted an offer ostensibly made by two buyers jointly.

2) However, the offer was actually from only one buyer.

3) It was clear that the defendant in that instance would not have accepted the offer had he known the true position [error in persona].

Question 8

Venter and Others v Credit Guarantee Insurance Corporation of Africa Ltd:

Answer 8

Error in persona is material only if the identity of a party is of vital importance to the mistaken party.

Question 9

RECTIFICATION

Answer 9

1) Remedy for correcting mistakes in written
contracts.

2) Sometimes when committing negotiated terms to a written format—a failure to correctly indicate the common intention of the parties occurs.

3) Generally parties can correct themselves (by agreement) or simply perform as per the correct intention

Question 10

RECTIFICATION

Answer 10

1) Rectification does not create a new contract, nor does it amend an existing contract; it merely serves to correct the written memorial of the agreement so as
to accurately express the true intention of the parties.

2) Boundary Financing Ltd v Protea Property
Holdings

Question 11

WHEN CAN YOU APPLY (UNDER WHAT
CIRCUMSTANCES)?

Answer 11

1) Document does not reflect true intentions of parties—bona fide mistake.

Question 11

WHO MAY APPLY?

Answer 11

1) A party to an incorrectly recorded agreement.
2) Ask for the document to be corrected to conform with the true intention of the parties.