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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2014-05-16
Much of an attorney's professional life is spent drafting, interpreting, advising or enforcing some form of contract or ageement. These could range from any type of agreement, be a commercial agreement, sale of business or shares, immovable property, credit agreement, ante-nuptial contract, lease agreement, the list is endless.

In South Africa, the words contract and agreement are used interchangeably. It's generally accepted that a contract comes into existence when two or more parties enter into an agreement, creating a legal obligation on both sides. Essentially a contract comprises of an offer and an acceptance.

That means once an offer is made and it has been accepted a contract is now in place. However in order for the contract to be binding, it has to be valid. Hence you cannot look to the court for assistance if the contract was illegal or unenforceable.

If there was a "hit" contract made on the life of a person and the person promising to pay the hitman, breaches the contract by failing to uphold his end of the contract, that contract would be regarded as being void ab initio (i.e. void at the outset).

A void contract is one, which is illegal, or it contains obligations, which are impossible to fulfill. Some other examples of void contracts would be contracts involving gambling or gambling debts, the soliciting of or any transactions involving prostitution or any contract which is against public policy ("contra bonis mores").

A contract can also be set aside if it's voidable. A voidable contract is one which could potentially be set aside. It remains valid but will only be binding on one of the parties. The party who would not be bound by the terms can elect to either cancel or uphold the contract.

An example of a voidable contract is a contract concluded with a minor. If you enter into a contract with a minor without obtaining the guardian of that minor's consent, that contract will be invalid. If however the guardian subsequently provides his consent, the voidable contract will then become valid. If not the contract will remain invalid.

Another type of voidable contracts are contracts concluded when you are not in your sound and sober senses, ("non- compos mentis"). If you were drunk or high on drugs and unable to appreciate what you are agreeing to, that contract would be deemed voidable.

Similar conditions exist when dealing with an insane person, unless a duly appointed curator of the insane person consents to the terms of the contract. Contracts where one party was deceived into entering are also voidable. Misrepresentation in this instance can then be effectively be raised a defence.

Know your rights! Contact The Law Desk of Fawzia Khan & Associates. We Know! We Care! We Deliver! Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance. Follow us on Twitter @AttorneyFawzia.