Trollip v Jordaan Case Notes

Trollip v Jordaan 1961 (1) SA 238 (A)

Citation

• 1961 (1) SA 238 (A)

Court

• Appellate Division

Judges

• Steyn CJ, Hoexter JA, Van Blerk JA, Botha AJA, Van Winsen AJA

Heard

• September 9, 1960

Judgment

• November 14, 1960

Flynote

• Sale of Farm: A unilateral mistake by the purchaser occurred due to the seller's agent incorrectly pointing out the boundaries.
• There was no common mistake or error in corpore.
• The property was purchased as per the title deeds.
• A portion of the afforested land pointed out did not fall within the boundaries.
• The voetstoots clause did not refer to the pointing out but to the property in the deed.
• The true cause of action was misrepresentation.
• The seller was protected from consequences by a literal interpretation of clauses in the deed.
• Extrinsic evidence to interpret otherwise was inadmissible.

Headnote

• The appellant purchased a farm from the respondent under a deed of sale that correctly reflected the boundaries and extent as per the respondent's title deeds.
• Clause 8 of the deed stated: 'The parties acknowledge that this agreement is the entire contract, and no other conditions, stipulations, warranties, or representations have been made unless included herein and signed.'
• Clause 1 contained: 'The seller makes no representation and no warranty inducing the sale.'
• The appellant was misled by the respondent's agents, believing the property included more afforested land due to incorrect boundary pointing.
• The appellant claimed his mistake was material, reasonable, and bona fide, and he would not have bought if not for it, thus the deed was void.
• The respondent successfully excepted to the declaration in a Provincial Division.
• Held: The appellant's cause of action was their unilateral mistake induced by the respondent's misrepresentation.
• An innocent misrepresentation renders a contract voidable, not void.
• The appellant was relying on an innocent misrepresentation to avoid the contract but could not disregard clauses annulling such effect.
• The appellant bought the property described in the title deeds, not another property.
• A mistake about the amount of afforested land was not an error in corpore.
• The appellant's true cause of action was misrepresentation, not common mistake or error in corpore.
• Giving the words 'no representations whatsoever' their ordinary literal meaning was not absurd, so extrinsic evidence was inadmissible.
• The voetstoots clause in clause 1 referred to the property as defined in the deed, not to the land allegedly wrongly pointed out.
• The complained-of representation was covered by clauses 1 and 8, so the induced mistaken belief had no effect on the deed of sale.
• The exception to the declaration was rightly upheld.
• The decision in the Transvaal Provincial Division in Trollip v Jordaan, was confirmed.

Case Information

• Appeal from the Transvaal Provincial Division's decision upholding an exception to a declaration.

Arguments

Appellant's Argument (H.C. Nicholas)

• Proof of mistake excludes intention; there is no consensus ad idem.
• The court must hold that there was no contract, where minds are never ad idem.
• The general rule is that a party's erroneous belief is insufficient to annul a contract to maintain the security of written engagements.
• The erroneous belief, if induced by one of the parties, allows the mistaken party to repudiate assent if the error is essential or fundamental.
• English law is similar.
• The appellant's mistake was an error in corpore because he intended to contract with reference to the farm pointed out to him by respondent and his agents, while respondent had in mind the farm registered in his name in the Deeds Registry.
• There was no consensus ad idem, therefore no contract.
• Alternatively, the appellant's mistake was an error in materia or substantia.
• The question of whether a mistake is an essential error (which would avoid the contract), or merely incidental or collateral error (which would not) is a matter for evidence and is incapable of being decided on exception.
• A contract vitiated by mistake is void, not voidable.
• Clauses 1 and 8 of the deed of sale have no special sanctity.
• No agreement can preclude fraud, since fraud renders voidable the agreement not to set up fraud.
• Where there was no consensus ad idem and the contract was void ab initio, clauses such as 1 and 8 are also void.
• Alternatively, if clauses 1 and 8 are separate undertakings, they do not preclude the appellant from establishing the allegations contained in the declaration.
• It is implicit in both clauses that there is in existence a binding contract between the parties but the truth, unknown to both parties, was that the contract was void.
• As a result, the parties, in agreeing to these clauses, were under a common mistake as to an essential and integral element of the subject matter.
• A voetstoots clause does not ordinarily exclude misrepresentations and it is submitted that it does not exclude essential mistake.
• The provision that 'the seller shall not profit by any excess nor shall he be liable for any deficiency in nature or extent' simply means that the price is not to be affected if the property is more or less than 955 morgen in extent.
• Sissons v Lloyd, 1960 (1) SA 367, was wrongly decided and is distinguishable based on a misreading of Wells v SA Alumenite Co., 1927 AD 69, which was a case not of essential error but of misrepresentation resulting in incidental error.

Respondent's Argument (M.R. de Kock, Q.C.)

• The deed of sale is clear and unambiguous and in the absence of an allegation of fraud, the Court will not go behind the contract.
• A party is not entitled to set up a case inconsistent with his written agreement unless it is contrary to public policy to hold him to that agreement.
• There is, as regards this rule and its application, no difference in principle between an alleged void contract which is sought to be rescinded on the ground of mistake and an alleged voidable contract which is sought to be rescinded on the ground of misrepresentation - In both cases there is an effective contracting­out, a binding agreement not to rely on any innocent statements which may constitute misrepresentation or include mistake.
• By express agreement, the written agreement supersedes, and is intended to supersede, in cases of this kind, the anterior statements which otherwise might give rise to defenses of misrepresentation or error.
• The position cannot be that these provisions will protect the seller in the case of his own false (albeit innocently made) representations which induce the purchaser to enter into the contract, and not where there is merely mistake on the part of the purchaser.
• To allow appellant to lead evidence of the representations which allegedly gave rise to the mistaken belief would, in view of the express provisions in the contract, offend against the parol evidence rule and such evidence is therefore inadmissible.
• The defence of justus error relied on in this case cannot be established and is therefore bad.
• There is, moreover, in terms of the deed of sale, a sale ad corpus. The mistake relied on cannot vitiate the contract.
• Appellant is precluded by the terms of his contract from setting up mistake for the purpose of avoiding the contract just as much as he is prevented from relying on innocent misrepresentations for the same purpose.
• Nicholas, in reply.

Judgment (STEYN, C.J.)

• The appellant's pleadings assert a mistake on his part caused by a misrepresentation by the respondent, as the basis for the non-existence of, or non-binding nature of, the contract and recovery of the paid deposit.
• The alleged mistake, however, is not unilateral.
• The pleadings form a whole; the essential features of the appellant's case must be sought in them as a whole - The appellant only mentions his own mistake in the statement of claim, but there is no tacit assertion that the respondent did not also have a misconception.
• When asked to explain how he acquired his mistake, the appellant provided details also showing a mistake on the respondent's side; the respondent pointed out the wrong boundaries and his agents maintained the wrong boundaries as the correct ones until the contract was signed.
• Since no fraud or dishonesty is alleged, it can be inferred that the respondent did not know any better when the contract was signed and shared the same mistake as the appellant.
• The pleadings, as such, would not prevent him from conducting his case on that basis.
• The respondent does not argue that the contract cannot be invalid or declared invalid due to the appellant's mistake, or that the commonality of the mistake excludes invalidity or voidability, or that the appellant should have requested improvement of the contract; the respondent relies on clauses 1 and 8 of the deed.
• Assuming for the purposes of this appeal that the respondent can do so, even if the sale could be declared invalid from the beginning due to the mistake, the question is whether the clauses prevent the appellant from relying on the alleged misrepresentation.
• The mistake was twofold: concerning the shape and location of the ground described in the contract, and concerning the amount of pine forests on it.
• The first is not just a mistake about a characteristic of the land; it relates directly to the alleged pointing out of boundaries and amounts to an error in corpore, a mistake about the identity of the object of the sale.
• The boundaries allegedly pointed out include not only Klipdraai and part A of Waterval, but also parts of the farms Waterval, Aden, and Ceylon, including 300-500 acres of pine forest, plus a substantial piece of Waterval and a smaller piece of Aden without pines.
• The indicated boundaries include a few hundred morgen, partly forested, on four adjacent farms outside Klipdraai and part A of Waterval.
• The whole of the indicated ground is not the property mentioned in the contract, but something entirely different.
• This is not just a minor misidentification of beacons that makes no real difference to the identity of the land, so the case is similar to where a buyer is shown farm A but signs an agreement for farm B, thinking it is farm A.
• The question is whether clauses 1 and 8 exclude proof of an incorrect indication of boundaries leading to a mistake, and furthermore a common mistake, of this particular nature.
• Clause 8 expresses a clear intention to limit the parties to the writing, acknowledging that no representations were made that are not in the contract.
• The intention of the parties must be sought in the words they used, but the principle that requires giving effect to the parties' own chosen words must be balanced by the principle that their will and intention are stronger than their words.
• The approach is that if giving words their ordinary meaning would lead to an absurdity, a court may depart from the literal meaning to give effect to the true intention of the parties.
• From the provision in clause 1 that the property is sold voetstoots, as seen and approved by the buyer, it is clear that the appellant wanted to buy a piece of land that he had seen and approved of, and that the respondent wanted to sell such a piece of land to him.
• Clause 8 is intended to protect a seller against his own misrepresentation - Because he wants to sell the specific object that he offers to the buyer for inspection and approval voetstoots, he can hardly intend with such a clause to create in advance a means of defense against inadvertent moving of another object, which the approval cannot relate to, by way of faulty description of the indicated object in the written piece.
• It is doubtful whether such a reference to 'misrepresentations' in such a clause, even under normal circumstances, would include the indication of the merx.
• These considerations apply even in unilateral error, and would be sufficient for the conclusion that a provision such as that in clause 8 cannot be intended to apply to a mistake about the identity of the merx.
• If such a clause prevents proof of such a mistake, it would mean that one party would enable the other to enforce a contract on him which neither wanted to make.
• For these reasons, and noting that a strict interpretation fits with a waiver of rights, it seems that clause 8 should not be read to cover a mistake about identity that resulted in a common mistake; the same applies to the provision in clause 1 that the seller makes no representation or guarantee to the buyer that gives rise to the sale.
• Clause 1 further provides that the property (Klipdraai and part of Waterval) is sold as described in the title deeds, but this is precisely the point of the allegedly faulty indication of the object of the sale.
• If this provision excludes proof of a mistake regarding the merx, a buyer could never rely on such a mistake in a written contract: It was not the intention of a series of relevant judgments in this court from Pieters and Co v Salomon, 1911 AD 121, to Steenkamp v Webster.

Outcome

• The court held that the appeal succeeds with costs and the judgment of the first court is to be altered to dismiss the exception at cost.
• BOTHA, WN ­ A.R., agreed with STEYN, H.R.

HOEXTER, J.A., Dissenting Judgment

• The crucial question then arises whether the words of clause 1 quoted above and the words 'no . . . representations whatsoever' are to have their ordinary literal meaning or whether the appellant is entitled to give some other and more limited meaning to them.
• Applying the rule of interpretation set out in the authorities quoted, IN can find nothing in the contract which would make it absurd to give the words 'no representations whatsoever' any other than their ordinary literal meaning.
• The statement in clause 1 that 'the property is sold voetstoots, that is to say, as seen, inspected and approved by the purchaser' does not, as I have previously mentioned, refer to the area of land alleged to have been pointed out by the respondent to the appellant sixteen months before the signing of the deed of sale; it clearly and specifically refers to the property as defined in the deed of sale.
• Once it is clear that the parties, in terms of the deed of sale, intended to buy and sell the property defined in the deed, it becomes impossible to infer, from the contract itself, that the parties intended to limit the meaning of the words 'no representations whatever'.
• These words clearly refer to any kind of misrepresentation which would, but for these words, have prejudiced the position of the respondent.
• They obviously cover the misrepresentation relied on in the present case which induced a unilateral error as to the area of afforested land included in the property.
• They would, in my opinion, cover any innocent misrepresentation whatever, irrespective of the particular mistake induced by that misrepresentation.

Dissenting Judges

• VAN BLERK, J.A., and VAN WINSEN, A.J.A., concurred in the judgment of HOEXTER, J.A.