Contract_law_Part_2

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An obligation is a legal tie between two people. The obligation creates a personal right in favor of the creditor to claim performance from the debtor. GENERAL TYPES 1. Natural obligation : cant ... be enforced 2. Civil obligation : can be enforced SPECIFIC TYPES 1. Simple: exact performance is stipulated. E.g. Seller is to deliver the mangoes to B 2. Alternative: a creditor can choose from two or more specified choices /alternatives. E.g. the seller can deliver either mangoes or guavas to B 3. Generic: A party can chose from a family of performances or a specified genus of performance, e.g. The buyer must choose form the 10 nguni cattle. 4. Facultative: A party is given a choice of two alternatives, Choice A and choice B, but the creditor cannot make the choice. The seller must deliver mangoes or guavas . In this one remember that the creditor must choose the first specified performance. THE ESSENTIALIA : distinctive terms used to identify or classify a contract as one of the specific types of contract recognized by law. Thus, the law provides that a contract can be a contract of sale only if the parties have agreed that a thing shall be delivered in exchange for a price. THE NATURALIA : These provisions may be changed by the parties, unless the law contains provisions to the contrary. If nothing is stipulated by the parties when concluding the agreement, the usual positive rules become operative. Examples of naturalia are the seller’s guarantee against latent defects in the thing sold. INCIDENTALIA : additional terms agreed upon by the parties . They are special arrangements made by the parties. EXPRESS TERMS : are specifically and explicitly agreed upon by the parties, fixed by the actual agreement, and are either articulated in an oral contract or written down. They are the most important terms in the contract. SIGNED CONTRACTS: CAVEAT SUBSCRIPTOR APPLIES: A person who signs a written contract is ordinarily bound by its terms in terms of the maxim caveat subscriptor: let the signatory beware. STANDARD-FORM CONTRACTS : Express terms in standardized contracts are dealt with differently from express terms negotiated by the parties, in that a party presenting a standardized contract to another for signature is expected to draw his attention to any unexpected terms, failing which the signatory may not be bound. UNSIGNED DOCUMENTS Express terms may also be incorporated into a contract by reference to one or more other documents that are not necessarily signed by the parties. E.g where the main contract refers to standard terms. A TICKET, WITH EXPRESS LEGAL TERMS. In certain contracts it is customary that a ticket is issued in order to serve as evidence of the existence of the contract. The question may then arise whether the person receiving the ticket is bound by the terms thus incorporated by reference. To determine this question, our courts, following the English decision, have laid down a 3-fold test: 1. Did the person who received the ticket know there was printing or writing on the ticket? 2. Did he know that the writing or printing referred to terms of the contract?  If both these questions can be answered affirmatively the terms referred to form part of the contract. But if either of them is answered in the negative, a further question is put. ......................................................................continued..................................................................... [Show More]

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