Formalities

Notorial Execution

• Definition: The process of concluding a contract that requires signing in the presence of a notary.

• Process:

  • Visit a notary to sign the contract.

  • A decorative ribbon may be added to the finalized contract for presentation.

• Professional Path:

  • Attorneys must take additional board exams to become conveyancers.

  • Further board exams are needed to become a notary.

Law of Evidence

• Role in Legal Proceedings:

  • Contracts serve as evidence in court.

  • A party may only present the contract itself as evidence, highlighting its limitations in legal disputes.

Surety Agreements

• Definition: A surety agreement involves a third party agreeing to fulfill obligations if the borrower defaults.

• Requirements for Validity:

  • All terms of the surety agreement must be documented in writing.

  • If not all material terms are in writing, the surety contract is void.

  • The initial agreement with the bank can be oral or written, but the surety must be formalized in writing.

Consumer Protection

• Relevance:

  • Important to check for specific requirements when evaluating surety agreements.

  • Consider the legal implications of the facts presented in any case study.

E-Commerce Contracts

• Definition: E-commerce refers specifically to contracts formed electronically.

• Validity of Written Documentation:

  • A document is considered "in writing" if it is in the form of electronic messages (e.g., email, fax, WhatsApp).

  • Electronic signatures are deemed valid under certain jurisdictions.

Contract Amendments

• Example of Time Period Adjustment:

  • A contract was initially set for ten months will be extended to twenty-four months if documented in writing.

  • Any variation must be in written form to avoid disputes.

• Exceptions to the Variation Clause:

  • Parties can orally agree to terminate a contract under specific circumstances.

Entrenchment Against Variation

• Importance:

  • Original contracts often include clauses stipulating how they can be interpreted or modified.

  • Evidence presented in court must primarily consist of the written contract unless exceptions apply.

• Circumstances for Exceptions:

  • Oral agreements during discussions (e.g., over coffee) may not hold if they contradict written terms.

  • Misrepresentation or duress claims must be proven with evidence.

Ratification and the Parol Evidence Rule

• Definition: Ratification allows correction of documents that do not reflect the true intention of the parties.

• Material Errors:

  • If an agreement states a price incorrectly (e.g., R200 instead of intended R100), the contract may be rectified based on mutual understanding.

  • Rectification applies only to material clauses not reflecting the intended agreement.