SECTION: 3
Formalities and
Terms of a
Contract
TABLE OF CONTENTS
Content
Section 3
Formalities and Terms of a Contract
Page
60
Overview
62
3.1
Contracts where formalities are required
63
3.2
Terms of a Contract
66
3.3
Conditions of a Contract
71
3.4
Clauses of a Contract
77
3.5
Summary
81
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Overview
Learning Outcome
The following is the Learning Outcome of this Section:
3. Conceptualise the Formalities and Terms of a Contract.
Learning
Objectives
The Learning Objectives are as follows:
On completion of this Section, you will be able to:
3.
Assessment
Criteria
Conceptualise the Formalities and Terms of a Contract by:

Recognising Contracts where formalities are required

Comprehending the terms of a Contract

Comprehending the conditions of a Contract

Comprehending the different clauses of a Contract
To demonstrate the achievement of the Learning Objectives, you are required to
meet the criteria and/or provide the following evidence:
Recognising Contracts where formalities are required
 List Contracts that include formalities required by law
 Describe formalities included by parties to a Contract
Comprehending the terms of a Contract
 Identify the terms of a Contract
 Differentiate between express and implied terms
Comprehending the conditions of a Contract
 Differentiate between a resolutive and a suspensive condition
 Differentiate between a supposition and a modus
Comprehending the different clauses of a Contract
 List the clauses that may form part of a Contract
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3.1
Contracts where formalities are required
Introduction
To determine whether a valid Contract has come into existence, one needs to
establish whether compliance with any formalities is prescribed for the
formation of a particular type of Contract.
Formalities are requirements relating to visible form in which the agreement
must be cast in order to create a valid Contract. These requirements may be
predetermined by the law or by the Contracting parties themselves. In most
cases, compliance with formalities consists of reducing the Contract to writing
with or without the signatures of the parties.
If the law requires that certain formalities must be observed, these requirements
must be fulfilled in order to create a valid and enforceable Contract.
In the same way, one or both Contracting parties must also comply with the
required formalities.
The general rule
The general rule is that no formalities are required for the formation of a
Contract.
In the majority of cases, an informal Contract is binding and Contracts are
validly concluded without the observation of any formalities.
tacit = understood
or implied without
being stated
EXAMPLE: You go to the supermarket and remove items from a supermarket
shelf. Without saying a word, you offer money for the goods at the pay point.
The shop assistant accepts the money and allows you to take the items. In this
case, a Contract of sale arises tacitly through conduct.
The parties in a Contract are normally free to choose the way they wish to create
a Contract.
Can you recall the ways in which one can conclude a Contract?
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Formalities
required by law
As discussed, the prescription of formalities is the exception to the rule.
However, when concluding certain types of Contracts, Parliament has laid down
certain requirements, which must be satisfied. These requirements are
mainly aimed at:


Preventing fraud
Reducing uncertainties and problems
As discussed, the most common requirement is
that certain Contracts must be in writing and
should be signed by all the parties in order to
render it valid.
Examples are:

Contracts for the alienation of land.
In terms of the Alienation of Land Act, 68
of 1981, no Contract for the alienation of
land is valid unless it is contained in a “Contract of Alienation” and signed
by the parties to the Contract or by their authorised agents.

Contracts of suretyship.
In terms of the General Law Amendment Act, 50 of 1956, a Contract of
surety is only valid if it is in writing and signed by or on behalf of the
surety. (Suretyships are discussed in “Suretyships”.)

Contracts of donation in terms of which performance is due in the
future.
In terms of the General Law Amendment Act, 50 of 1956, a Contract of
donation under which performance is due, is valid only if the terms thereof
are contained in a written document which is signed by either the donor or
by an appointed authorised person.
Credit agreements
In other instances, although legislation requires that the Contract must be in
writing and signed, non-compliance thereof will not automatically lead to the
invalidity of the Contract.
For example, in terms of the Credit Agreements Act, 75 of 1980, any credit
agreement must be in writing and signed by or on behalf of every party
thereto. But, a provision of the Act is that a credit agreement which does not
comply with the requirements, shall not for that reason be invalid, although it will
constitute an offence.
Another formality, which must be adhered to, is the one of registration. In terms
of the Deed Registries Act, 47 of 1937, an Antenuptial Contract must be
registered in the manner and within the time mentioned in the Act. (Credit
agreements are discussed in detail in “Introduction to Credit Agreement
Law”.)
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Formalities
required by
parties
While legislation may require compliance with certain formalities to create a valid
Contract, the parties to a Contract may also themselves prescribe
formalities.
The offeror may set the requirement that acceptance of an offer must be in
writing. The acceptance of the offer will result in a valid Contract only if the
acceptance is in writing.
It may also happen that the parties negotiate the contents of the Contract
orally and agree that the final agreement will be in writing.
If an oral agreement precedes the written agreement, it must be determined
from the Contract whether the parties intended the written agreement to be a
requirement for validity or proof of their oral Contract.
If writing is a requirement for the validity of the Contract, the “Contract” remains
invalid until it is put in writing.
If the parties intended the written agreement to only be proof of the oral
agreement’s terms, the oral Contract becomes binding immediately upon
conclusion, even though nothing has been put in writing.
Relate the discussion around “Contracts where formalities are required”
back to your own workplace. List all the Contracts in your work
environment that must adhere to formalities. These formalities could either
be required/prescribed by law or by THE BANK policy.
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3.2
Terms of a Contract
Introduction
A term in a Contract is a provision which imposes on a Contracting party one
or more contractual obligations to:

Act in a specific manner.

Refrain from performing a specific act.

Qualify the contractual obligations.
It defines the contractual obligations to which the parties bind themselves and
which they can enforce against each other. It also stipulates the time when or
the circumstances in which the obligations become enforceable or are
terminated.
Terms and
statements
Terms, are statements which are made seriously and deliberately and with
the intention that they should be enforceable in law.
These statements must be distinguished from statements regarding the Contract
made with no intention that it should have legal consequences. Sales talk
(puffing) is merely excessive praise of performance and is not a term of the
Contract.
EXAMPLE: You undertake to buy a car from General Motors for R50 000. This
is a contractual term and imposes an obligation on you to pay a certain amount to
General Motors to deliver a specific vehicle.
The sales person informs you that the car will be delivered the following week.
This is also a contractual term as it qualifies General Motor’s obligation.
The sales person informs you that the car is the most economical one of the
range. This is not a term but sales talk.
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Special/important
terms
In the 1st Section we discussed that the law will enforce an agreement, as long as
it is not:

Illegal

Immoral

Impossible
The law will not interfere in Contracts between parties or question any terms
since it is assumed that the parties are in equal bargaining positions and are not
forced to enter into the Contract.
It is assumed that whatever terms are agreed upon, are mutually acceptable
and the parties have agreed to it voluntarily.
However, this is not always the case. Banks will impose certain terms and
conditions on all applications for loans or credit. This will make it easier
for the money to be recovered in the event of the debtor’s failure to pay.
The applicant is “forced” to agree to these terms or else the bank will not enter
into the Contract. These terms are binding even though the applicant may
regard them as onerous or would not have agreed to them if he/she had freedom
of choice.
Financial institutions impose conditions in their favour, and place the other party
in a position that he/she has no choice but to accept the conditions. However,
the client still has the choice of agreeing to the loan or not.
Another example of imposed terms are those displayed on notices in parking
garages, shopping malls, etc. which limit the liability of the party displaying them.
Enter on own risk!
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Special/important
terms, continued
In the above cases, there is no documentation signed, as for example, with a
credit agreement or loan.
Where it is necessary to bind somebody to imposed terms and conditions, it
is advisable to get the other party to sign an acknowledgement that he/she
agrees to be bound to the terms and conditions.
This means that the person who signs the Contract, whether he/she knows the
contents thereof or not, is treated as having agreed thereto and will be bound
by the terms in the Contract.
When a person is presented with a Contract, it is his/her responsibility to read
the contents. If he/she does not read it, or it contains technical words or phrases
that he/she does not understand, he/she must ask the person imposing the
terms to explain the terms. It is the signatory’s responsibility to request an
explanation of any contractual terms, which he/she does not understand.
The person who wants to impose special terms in a Contract should ensure
that the other party is made aware of the terms.
EXAMPLE: When you park in a parking garage there is normally a sign reading
“At owner’s risk”. You will be bound by the special terms if it can be shown that
you saw and understood it or that it was brought to your notice.
If you did not see or not understand the notice, then the owner cannot rely on the
imposed terms unless he take steps to bring the contents to your notice.
In the financial environment, the imposition of the bank’s terms to various
transactions is standard procedure and all banks are well protected in this
regard.
REMEMBER: Take care to explain provisions contained in any document
clearly, correctly and adequately. Failure to do so could allow the other
party to escape liability of the Contract.
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Relate the following statement back to your own work environment:
“In the financial environment, the imposition of the bank’s terms to various
transactions is standard procedure and all banks are well protected in this
regard.”
Do you, in your duties in the credit department, explain the terms and
conditions of a credit agreement, lease or loan to the customer before
he/she signs the Contract?
Use the space below and note the procedure when explaining the above to
the customer. List 2 examples of “terms and statements” contained in a
Contract.
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Express and
implied terms
In any Contract, there are terms that are deliberately stated.
EXAMPLE: In a Contract of sale the description/identity of the item sold and the
price must be expressly stated. (The requirements of an agreement will be
discussed in detail in “Introduction to Credit Agreement Law”.)
In many cases, however, not all terms are deliberately stated. There are implied
terms, which are deemed included unless they are expressly excluded.
EXAMPLE: In a Contract of sale it is assumed that the seller is guaranteeing
that the item being sold is free from any defects, unless he expressly states that
the item is being sold “voetstoots”. In other words, the item being sold may have
defects for which he cannot be held liable.
As mentioned earlier, to bind another person to imposed terms and conditions,
the best way to do so is to get the person to sign an acknowledgement that
he/she agrees to be bound to the terms and conditions.
Use the space below and note 2 types of Contracts from your workplace,
which contain “express and implied terms”. You may note the terms
contained in the Contracts or paste a copy thereof in the space provided.
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3.3
Conditions of a Contract
Introduction
Normally speaking, the word condition is often used to refer to what in reality is
the all-inclusive concept “term”.
However, a condition is a particular kind of term and does not include all the
terms generally found in Contracts.
A condition can be described as a contractual term which renders the
operation (the coming into operation or the termination of the contractual
obligations) and consequences of the Contract dependent on the occurrence,
or non-occurrence, of a specified uncertain event.
The event must be specified, in other words, there must be no doubt which
event will render the obligations operative or terminate them.
The event must also be uncertain, in other words it must be uncertain whether
the event will indeed occur.
EXAMPLE: Mike makes an offer to buy John’s bike “if the sun rises tomorrow”.
He does not refer to an uncertain event because the rising of the sun will
certainly take place. The reference to the sun’s rising cannot, therefore,
constitute a condition.
If, however, Mike agrees to buy the bike “if THE BANK grants him a loan within 2
weeks”, he does refer to an uncertain event because it is uncertain whether
or not THE BANK will grant the loan. In this case, Mike attaches a condition
to his offer. The purchase is subject to a condition and the Contract
becomes operative only if the condition has been fulfilled.
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Suspensive
conditions
A suspensive condition is a contractual term which suspends the operation of
the contractual obligations in terms of the Contract until the condition has
been fulfilled.
Upon conclusion of an agreement containing such a condition, a valid
Contract arises and a binding contractual relationship exists between the
parties. However, the operation of the contractual rights and duties are
suspended until the conditions have been fulfilled.
Although conditional, the rights and duties exist and they can:

Be ceded

Are transferable upon death

Are acknowledged in the event of insolvency
A creditor can protect his/her conditional rights by means of an interdict. The
contractual rights and duties will come into operation and enforceable only
when the condition is fulfilled.
The condition will be fulfilled when the uncertain future event takes place. If
this event does not take place, the condition is not fulfilled and the
contractual obligations does not become operative and is terminated.
Let us look at the example on the previous page:
EXAMPLE: Mike makes an offer to buy John’s bike if THE BANK grants him a
loan within 2 weeks.
If John accepts the offer, a contractual relationship between Mike and John
comes into existence and they are bound to keep to the provisions of the
Contract BUT the Contract does not come into operation. Its operation is
suspended until the condition is fulfilled.
Only when the condition is fulfilled, namely that THE BANK grants Mike the
loan, may John claim payment for the bike and Mike can claim delivery of the
bike. If the condition is not fulfilled, the Contract is dissolved and neither of
the parties has an obligations towards the other.
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Resolutive
conditions
A resolutive condition is a contractual term which renders the continued
existence of the Contract dependent on the occurrence (or non-occurrence) of
a specified uncertain future event.
If an agreement contains such a condition, a binding Contract comes into
existence when a Contract is concluded.
Unlike the case of a suspensive condition, the contractual rights and duties
become operative and are immediately enforceable. If the condition is
fulfilled, the Contract is dissolved and the contractual rights and duties
cease to exist. In other words, the Contract comes into operation when
concluded and is undone by the fulfilment of the condition.
However, complete restitution (compensation) of performance subsequent to the
fulfilment of the conditions is not required in all types of Contracts.
In the event of Contracts which create continuous obligations (regular
performance by the party/parties over a period of time) and not a single
performance, complete compensation does not occur upon fulfilment of the
resolutive condition.
EXAMPLE: Sipho lets his house to David subject to the Contract being
dissolved if David is transferred. When David’s employer transfers him, the
Contract is dissolved. The obligations which would have been due in the future
are terminated.
However, Sipho need not repay the rental which David had paid in respect of the
completed period during which David occupied the house. In these
circumstances, the contractual obligations which have already been
complied with are not undone, and the rental previously paid cannot be
reclaimed.
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Discuss suspensive and resolutive conditions with your Manager/Coach.
Can suspensive and resolutive conditions be applied within THE BANK?
If yes, state why and note 2 examples of Contracts in which such
conditions are contained.
If no, motivate why such conditions cannot be contained in a Contract.
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Supposition
The terms which render the existence of the Contract dependent on an event
which has already taken place, or on a state of affairs which exists at the
time of concluding the Contract, is known as a supposition (belief or
assumption).
In Contract, suppositions are often referred to as “conditions”, for example “ ……
conditional upon ……”.
An example of a supposition is:
EXAMPLE: Joe owns a plot in a coastal town. Sam wants to purchase the plot
only if it has a sea view. Joe does not know if this is the case and is not willing to
give a guarantee in this regard. They agree that Sam will purchase the plot
provided it has a sea view. If the plot has indeed got a sea view, obligations are
created from the beginning. However, the Contract creates no obligations if the
plot does not offer a sea view.
This is not a condition, as it does not relate to the happening of an uncertain
future event. It is a supposition as the Contract depends on existing state of
affairs.
Discuss a supposition with your Manager/Coach.
Can a supposition be applied within THE BANK?
If yes, state why and note 2 examples of Contracts in which such
conditions are contained.
If no, motivate why a supposition cannot be contained in a Contract.
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Modus
This is a contractual term which burdens a Contracting party’s right to the
performance made to him/her in terms of the Contract. This burden can be to
perform against a 3rd party, to do something, or to refrain from doing something.
The burden will always relate to something that has to happen in the future.
EXAMPLE: Lisa donates a house to Tendile, subject to the modus that she must
use part of the house as a nursery school. The Contract is unconditional and
Tendile can enforce Lisa’s performance immediately, even if she has not yet
complied with the modus.
Tendile can therefore claim delivery of the house immediately. However, if she
does not carry out the modus, namely, to use part of the house as a nursery
school, she is guilty of breach of Contract.
Discuss a modus with your Manager/Coach.
Can a supposition be applied within THE BANK?
If yes, state why and note 2 examples of Contracts in which such
conditions are contained.
If no, motivate why a modus cannot be contained in a Contract.
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3.4
Clauses of a Contract
Introduction
Contracts normally include, in addition to terms and conditions, also certain
clauses.
Below are 5 examples of clauses that could be included in a Contract, namely:
1. The Cancellation Clause
2. The Penalty Clause
3. The Forfeiture Clause
4. The Rouwgeld Clause (Rouwkoop Clause)
5. The Entrenchment Clause
The Cancellation
Clause
The inclusion of this clause in a Contract entitles a Contracting party to cancel the
Contract under certain circumstances if the other party is in breach of Contract.
If this clause is included in a Contract, the party in whose favour the Cancellation
Clause is stipulated can cancel the Contract in accordance with its terms as soon
as the other party breaches the Contract.
If the contract stipulates it, it is not necessary to send a letter of demand or a
notice, warning the other party of the intended cancellation of the Contract.
The Penalty
Clause
The common law attaches certain consequences to breach of Contract by
affording certain remedies to the innocent party.
Depending on the type of breach committed, the innocent party can:



Claim execution of the Contract
Cancel the Contract
Claim damages
However, the parties may find these remedies insufficient and include their own
“remedies” into the Contract in order to further penalise the party who is in breach
or to discourage him/her from breaching the Contract by the threat of a further
penalty.
Usually, a Penalty Clause consists of the payment of a sum of money.
EXAMPLE: In building Contracts, the owner and the Contractor agree that the
work must be done on or before a certain date. A Penalty Clause is added in
terms of which the Contractor must pay the owner a certain sum of money for
each day the operations exceed the date of completion as agreed upon. If the
Contractor breaches the Contract by failing to complete the work in time, the
clause becomes operative and he must pay the sum of money stipulated.
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Basically, the Penalty Clause is a calculation of damages in advance
(substitute for damages), and serves to discourage non-compliance with
the obligation agreed upon.
Legislation was put in place to ensure some measure of control over the use of
Penalty Clauses.
The Conventional Penalties Act 15 of 1962 applies to the following kinds of
clauses:

Section 1 of the Act stipulates that Penalty Clauses, which are defined as
a stipulation in a Contract that provides, that on breach of Contract, a
debtor shall be liable to pay a sum of money, deliver or perform
something, shall be enforceable.

Section 4 of the Act applies to a Contract that provides for a party’s
continued liability despite the other party’s cancellation.
EXAMPLE: Subject to an express clause to this effect, if Sipho is entitled to
cancel the Contract, Daniel remains liable for his own performance despite the
fact that the Contract has been cancelled and despite the fact that Sipho did not
render any performance.
The benefits for the penalty credit gain from the Penalty Clause is:

The penalty is recoverable on the ground of the debtor’s breach of
Contract.

The extent of the penalty is predetermined.
Penalty is only recoverable on the grounds that the debtor has committed
breach of Contract. The creditor does not need to prove the damage or the
extent thereof. In order to hold the debtor liable for payment of the penalty,
he/she only needs to prove that the debtor did in fact breach the Contract.
The penalty is intended as a substitute for damages. The Act prohibits the
creditor from claiming damages as well as the stipulated penalty. The Act
allows the parties to stipulate in the Contract that the creditor will have a choice
between claiming a penalty and claiming damages. If the Contract provides
for such a choice, the creditor is entitled to hold the debtor liable on either of
these two grounds.
However, if the Contract does not provide for such a choice, the creditor is
limited by the Act to enforce the penalty and the right to claim damages is
lost.
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The Forfeiture
Clause
The provisions of Section 4 of the Conventional Penalties Act 15 of 1962 are also
applicable to Forfeiture Clauses.
A party, who is entitled to cancel a Contract in specified circumstances, will
normally be entitled to compensation as well. The right to compensation entitles
the party who cancels the Contract to claim the return of everything he/she has
already performed in terms of the Act.
By including a Forfeiture Clause in the Contract, the parties can agree that one or
both of them will lose this right to compensation in certain circumstances. In this
way a Forfeiture Clause makes provision for a party who is in breach of Contract
to lose the right to compensation. The party, who is in breach of Contract, forfeits
all performances he/she has already rendered in terms of the Contract.
EXAMPLE: A Contract of sale can provide for a purchaser who commits breach
of Contract to forfeit all instalments already paid.
The Rouwgeld
Clause
(Rouwkoop
Clause)
This clause must be distinguished from a Penalty Clause. Where a Penalty
Clause only becomes operative in the event of breach of Contract, a Rouwgeld
Clause is not connected with breach of Contract. A Rouwgeld Clause is also not
subject to the provisions of the Conventional Penalties Act.
If a Contract contains terms that a person may withdraw from the Contract upon
the payment of a sum of money, we are dealing with a Rouwgeld Clause. If the
clause relates to a Contract of sale, it is called a Rouwkoop clause. The amount
payable is known as Rouwgeld Money (or Rouwkoop money), because it
represents the amount to be paid for the right to dissolve the agreement.
A Rouwkoop clause which normally forms part of Contracts for the sale of land is
a provision that the purchaser must pay a deposit when signing the Contract and,
if he/she wishes to withdraws from the Contract, he/she can do so on the
condition that the deposit is forfeited as Rouwkoop.
The Entrenchment
Clause
The term which provides that the agreement may be altered only by means of a
written amendment is known as an Entrenchment Clause. This term has the
effect that the Contract may not be varied by an oral agreement, even if the
parties are in complete agreement about the proposed amendment.
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Discuss the clauses with your Manager/Coach. Ensure that you
understand all the concepts.
Are any of these clauses included in Contracts concluded with THE BANK’s
clients?
If yes, state the type of Contract and the clause(s) included in the Contract.
If no, motivate why such clauses are not included.
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3.5
Summary
Summary
Below is a summary of the key learning points of this Section. Read through
them carefully and ensure that you understand all the concepts. Discuss any
uncertainties with your Coach before you move on to the next Section.

Formalities are requirements relating to visible form in which the agreement
must be cast in order to create a valid Contract
In the majority of cases, an informal Contract is binding and Contracts are
validly concluded without the observation of any formalities.
The law requires that certain Contracts must be in writing, namely:
 Contracts for the alienation of land
 Contracts of suretyship
 Contracts of donation in terms of which performance is due in the future
Any credit agreement must be in writing and signed by or on behalf of every
party thereto.
The parties to a Contract may themselves prescribe formalities.
The terms in a Contract imposes on a Contracting party obligations to:
 Act in a specific manner
 Refrain from performing a specific act
 Qualify the contractual obligations
Terms are statements which are made seriously and deliberately and with the
intention that they should be enforceable in law.
Terms may be imposed on a person, for example the terms that a bank
imposes on all applications for loans or credit.
The person who wants to impose special terms in a Contract should ensure that
the other party is made aware of the terms.
Any Contract contains terms that are deliberately stated.
A condition is a particular kind of term and does not include all the terms
generally found in Contracts.
A suspensive condition is a contractual term which suspends the operation of
the contractual obligations in terms of the Contract until the condition has
been fulfilled.
A resolutive condition is a contractual term which renders the continued
existence of the Contract dependent on the occurrence (or non-occurrence) of
a specified uncertain future event.
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Summary,
continued
The term which renders the existence of the Contract dependent on an event,
which has already taken place, or on a state of affairs which exists at the
time of concluding the Contract, is known as a supposition (belief or
assumption).
A modus is a contractual term which burdens a Contracting party’s right to the
performance made to him/her in terms of the Contract.
There are 5 types of clauses that could be included in a Contract, namely:
1.
2.
3.
4.
5.
The Cancellation Clause
The Penalty Clause
The Forfeiture Clause
The Rouwgeld Clause (Rouwkoop Clause)
The Entrenchment Clause
Use the space below and draw a mind map of the learning points in this
Section.
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