by Vicky | 25, 03, 19 | Uncategorized
Breach of Contract – What does this mean?
A breach of a contract means the failure of one party to meet that party’s obligations in an agreement. This can come about by either doing something a person was obliged not to do or failing to do something they were obliged to do.
What are the legal consequences of this clause?
The legal consequences of a breach of contract will depend on the remedies provided for in the agreement and whether the breached term was a material term of the contract.
A typical breach clause in a contract will provide for a notice of breach to be delivered from the one party to the party in breach and a time period within which the breach is to be rectified.
If the agreement does not set out the time period, then a period that would be considered reasonable must be provided in the notice of breach. What is reasonable will depend on the circumstances.
If the notice period expires and the breach is not rectified, the usual remedies available are to either cancel the agreement or seek enforcement of the agreement by calling for specific performance. Compensation could also be claimed for any loss or damages suffered as a result of the breach.
Our tip for dealing with the Breach clause
Ensure that the breach clause provides remedies for both parties in the event of breach. For example, some lease agreements only set out remedies for the landlord in the event of breach by the tenant, but not the other way around. You should also ensure that the time period provided for the rectification of the breach is appropriate for the circumstances of your agreement.
For more information, please contact us or send an email to vicky@fouriestott.co.za.
by Vicky | 13, 03, 19 | Uncategorized
Domicilium citandi et executandi – What does this mean?
Domicilium citandi et executandi, roughly translated, means the physical address at which legal notices and process (eg summons) can be served on you. A post office box address is not sufficient for the purposes of service of legal process and should be avoided.
What are the legal consequences of this clause?
The legal consequence of this clause is that delivery of a legal notice, e.g. Letter of Demand, or process at this address is sufficient for the purposes of legal action. You will be deemed to have received a legal notice or document if delivered to that address, whether or not you actually receive it.
If the legal notice or document is delivered to this address but you do not receive it, there can be dire and costly legal consequences for you. For example, default judgement may be awarded against you without your knowledge, simply on the basis that the summons was served on your domicilium address.
Our tips for dealing with Domicilium clauses:
- When nominating an address for service of legal notices and process, ensure that you use an address where you will actually receive any delivered notices.
- If you do not reside at the address, make sure that those who do live there will give you any documentation delivered there.
- If you move, make sure that you notify all relevant parties of your change in address in accordance with the terms of your agreement with them.
- You should provide an email address as well as a physical address, as notices may be delivered by email if the agreement provides for this. The email address provided must be one that you check regularly and will remain active or you will need to notify the relevant parties of a change in your email address as you would a change in physical address.
by Vicky | 07, 03, 19 | Uncategorized
Small Claims Court – When is it the right option?
Whilst we as a firm do our utmost to render our legal services at a reasonable cost, the nature of litigation is such that a successful litigant may not be able to recover all amounts claimed from a defendant if that defendant has no executable assets. This risk is increased where the amount claimed is a small amount because legal costs can sometimes outweigh the amount of the claim.
In such matters, you may want to approach the Small Claims Court. This is a free remedy where disputes are generally heard by attorneys acting as small claim court commissioners. No legal representation is permitted, although prior advice may be obtained at your own cost.
The current monetary limit on claims in the Small Claims Court is R12,000.00, but this is due to increase to R20,000.00 from 1 April 2019. If you as an individual have a claim for damages within this amount, and you are uncertain as to whether pursuing a defendant may be “throwing good money after bad”, this may be the correct forum for you.
The necessary contact details, as well as the details of which disputes may be heard at the Small Claims Court can be found at here.
by Vicky | 27, 02, 19 | Uncategorized
Voetstoots – What should a Buyer and a Seller do?
Voetstoots is a standard clause in an immovable property sale agreement which protects the Seller, stating that the property is purchased “as is”.
It is critical that Buyers inspect their prospective immovable property with a high degree of care and diligence. We highly recommend obtaining a home inspection report or other expert report, so that a purchase can be made with complete clarity on what constitutes “as is”.
Some questions that a Buyer should ask and record in writing are the following:
- Does the roof leak?
- When last were there issues with plumbing?
- Have any wooden items been replaced/treated?
- When was an electrician last called to the property?
- Are the architects plans up to date?
- Are there any restrictive or onerous conditions in the title deed?
- When was the geyser last replaced?
Although legally the responsibility is on the Buyer to properly inspect a property prior to its purchase, a Seller may avoid a potential legal dispute by disclosing any latent defects, of which the Seller is aware, in writing, prior to conclusion of the sale agreement.
For more detailed information on voetstoets and what it means in an immovable property transaction, please read our Voetstoots newsletter.
by Vicky | 19, 02, 19 | Uncategorized
What is a Notary?
A notary is an attorney who has passed an additional specialist exam. And who has been admitted as one by the High Court. They are afforded a high degree of trust, and in return are expected to act with the highest degree of good faith.
There are some common areas in which one would require a notary. One would be to execute an antenuptial contract when getting married, the other is to authenticate documents for use outside of South Africa. (As well as for some institutions within South Africa).
For more information please refer to Newsletter 12/2013 (Antenuptial Contracts) and Newsletter 18/2015 (Notarial Authentication of Documents).
We have a number of notaries in our firm so please contact us for notarial assistance. Or send an email to kerry@fouriestott.co.za
by Vicky | 07, 02, 19 | Uncategorized
Immovable property transactions, Voetstoots and the CPA
The Voetstoots clause essentially protects the Seller by seeking to deprive the Buyer of any recourse against the Seller, if the property has any latent or patent defects. Latent defect are discovered by a thorough inspection prior to sale, while patent defects are visible on inspection.
“Voetstoots” is a standard clause in an immovable property sale agreement. It protects the Seller by stating that the property is purchased “as is”.
The Consumer Protection Act, 2008 (“CPA”) only applies to sale transactions where the Seller sells the immovable property in the ordinary course of the Seller’s business. This places restrictions on voetstoots clauses.
Where the CPA does apply, a Seller will find it difficult to rely on the voetstoots clause. However, as the CPA does not apply to “once-off” transactions, voetstoots (as we know it) still applies to the majority of immovable property transactions.
For more advice on voetstoots, the CPA and immovable property transactions, please contact us or send as email to Stuart@fouriestott.co.za or Vicky@fouriestott.co.za
