Topic 1 quick revision Flashcards
what is a contract
Consensus Capacity Formalities Legality Possibility Certainty
general features
- juristic act
- bilateral or multilateral
- reciprocity
- freedom of contract
- consensual
- bona fidei
4 types of Roman contracts
- real
- verbal
- literal
- consensual
pacta sunt servanda
agreements must be carried out if parties have expressed their wishes
what is a iusta causa
no definition, used to mean that parties should have serious intention to contract but concept is redundant
contract and the law of property
contract is the underlying reason for a transfer of ownership but transfer does not rely on the obligation to be valid
3 types of agreements
- obligationary
- absolving
- real or transfer
what is the subjective approach to contract
see if there is a genuine meeting of minds, serious intention, consensus on the material terms, awareness of such terms
what is the objective approach
whether outside observers would think the parties have an agreement
what is animus contrahendi
both parties must have the serious intention to contract
what is the dual basis of contract law
will theory (consenus) reliance theory
what is the will theory
subjective
basis of contract = free will
considers intentions of the parties
what is the declaration theory
objective
what parties have expressly said
does not look to intention
form over substance
what is the reliance theory
compromise between will and declaration
protects those who reasonably rely on others conduct where there is an appearance of consensus
alternative basis to contract where the minds have not met
Steyn v LSA (briefly)
SA uses consensus first and reliance second
