Faculty of Law
Department of Private Law
Selected Highlights from Research Findings
When parties conclude a written contract, it is inevitable that much would be left unsaid. It would be impossible to provide for all eventualities in a written contract. As a result, the law has long since recognised that certain unexpressed terms can in appropriate circumstances be read into a written contract. In two recent cases, Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd and another 2008 (1) SA 654 (SCA) and Tolgaz Southern Africa v Solgas (Pty) Ltd and another; Easigas (Pty) Ltd v Solgas (Pty) Ltd and another 2009 (4) SA 37 (W) the courts again had to deal with this matter. The author considers the historical roots of unexpressed terms in a contract and analyses the two cases against other South African case law and the applicable law in Germany, the Netherlands, England, Canada and selected US States. Based on this analysis, the author concludes that South African law in this regard is based on English law and four kinds of terms can be distinguished in South African law:
Firstly, there are express terms. These are the promises and matters incidental to the promises which the parties have clearly indicated to each other in writing or speech.
Secondly, there are implied terms. These terms are inferred by law in a contract, despite the fact that the parties did not reach or would not have reached agreement on the matters involved. These terms, often referred to as naturalia, are derived from the common law, statute, precedent, custom or trade usage and are not dependent on the actual or presumed intention of the parties.
Thirdly, there are consensual tacit terms. These are terms relating to matters concerning which the parties had actually reached agreement or with regard to which the parties had some common expectation, but failed to express in writing or speech.
Fourthly, there are imputed tacit terms. These are terms concerning matters which the parties had not considered, but they would have agreed to the term concerned had their attention been drawn thereto at the time when they concluded the contract. Terms of this nature are based on the assumed intention of the parties. The officious bystander test is applied to determine whether or not a term should be implied into a contract. The test to determine whether an implied term can be inferred in a contract, is objective - what would the parties, as reasonable people have agreed to?
The unexpressed terms therefore supplement the express terms to ensure the business efficacy of a contract and give effect to the intention of the parties.
Contact person: Prof SJ Cornelius.
Despite the increased recognition afforded to biological fathers as legal parents, the Children’s Act 38 of 2005 still does not treat fathers on the same basis as mothers as far as the automatic allocation of parental responsibilities and rights is concerned. The article in PER/PLJ 2010 Vol 13 (3) by Anne Louw investigates the constitutionality of the differential treatment of fathers in this respect given South Africa’s international obligations, especially in terms of the United Nations Convention on the Rights of the Child, to ensure that both parents have common responsibilities for the upbringing of their child. After a brief consideration of the constitutionality of the mother’s position as parent, the constitutionality of the father’s position is investigated, first of all, with reference to section 9 of the Constitution and the question whether the differentiation between mothers and fathers, as far as the allocation of parental responsibilities and rights is concerned, amounts to unfair discrimination. The inquiry also looks at the question whether the differentiation between committed fathers (ie those that have shown the necessary commitment in terms of sections 20 and 21 of the Children’s Act to acquire parental responsibilities and rights) and uncommitted fathers may amount to discrimination on an unspecified ground. Since the limitation of the father’s rights to equality may be justifiable, the outcomes of both inquiries are shown to be inconclusive. The legal position of the father is finally considered in relation to the child’s constitutional rights – the right to parental care and the right of the child to the paramountcy of his/her interests embodied in section 28 of the Constitution. While there seems to be some justification for limiting a child’s right to committed paternal care only, it is submitted that an equalisation of the legal position of mothers and fathers is not only justified but imperative if the constitutional rights of children are to be advanced and protected.
Contact person: Dr AS Louw.
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