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Contracts and Obligations Theories of contract

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“…a legal bond (vinculum  iuris ) between two or more persons, obliging one party…to give, do or refrain from doing something to or for the other…” (H&P 8) Includes a right and a corresponding duty Sources of obligations?

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Delict: wrongful and blameworthy conduct causing harm to another, compensation Distinct from contract: element of volition Similarities? Concurrent liability

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Unjustified enrichment: a shift of wealth from one person’s estate to another without legal cause 1 NB: not “unjust enrichment” 2 Enriched party has obligation to return enrichment 3

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Property is not part of law of obligations Distinct from contract: nature of relationships Often overlap in practice, see commercial transactions

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All contracts based on agreement BUT: what constitutes such agreement? “Meeting of the minds” Appearance of agreement? 2 bases in SA law: consensus and reasonable reliance

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Will theory: consensus (will of parties) is the only basis of contractual liability Subjective Limitations exist Still point of departure in SA law Reliance theory: complements will theory Provides a subsidiary basis Reasonable reliance on consensus

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Facts Relevant part of judgment 59 I -62 I:  intention and subjective / objective agreement Reason for disagreement between parties Presence of consensus Potential application of reliance theory

Law of Contract

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