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Requirements for a valid contract

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capacity to contract, consensus, legality, possibility of performance and formalities

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Requirements for a valid contract

capacity to contract, consensus, legality, possibility of performance and formalities

Capacity

law recognises that person has the legal competence to perform a particular act giving rise to legal consequences

Limited capacity

minor, married persons, mental incapacity and insolvent

minor

person below age of 18 and unmarried

no contractual capacity

children under 7

unassisted contracts

without parental permission

assisted contracts

with parental permission, minor is bound by the contract and if fails, can be sued.

Differences between full and limited contractual capacity

person with capacity-bound. Person with limited capacity, not bound, if not assisted

who can assist in assisted contracts

Guardianship Act, mother and fathers OR mothers/fathers(wedlock/divorce/death)

Parental oversight-assisted contract

parent know that minor intend concluding the contract and what type of contract it is and contract must not contain any terms that were unusual/unexpected

consent is given (when)

before contract is entered into, but can be given after (ratification)

consent is given (how)

tacitly or expressly

case related to assisted contract

Van Dyk v South African Railways and Harbours

express consent

parents indicated consent by some positive action: verbally or writing

tacit consent

'silent consent' - does not object, there acknowledges the contract

emancipation

minor can apply to the high-court for an order declaring that he or she is a major

facts that a minor is tacitly emancipated

age of minor, still living with parents or seperate residence, financially independant and general relationship between minor and parents

cases regarding tacit emancipation

Dickens v Daley AND Grand Prix Motors v Swart

Minor can escape contract if

Misrepresentation, duress, undue influence or Material breach of contract by other party

Minor cancels (repudiate) contract due inherent prejuidice

restitutio in integrum (all must be back to how it was before the contract) status quo antes

Cases involving minor repudiate a contract

Wood v Davies

Contracts requiring both parents's permission

marriage, sale of minor's immovable property and passport application

Limping contract

gives unequal obligation to minor(not bound) and to major (bound by contract)

parents ratify a contract

authorise its conclusion after the fact > transforms from unassisted contract to assisted contract

parents repudiate a contract

major- returns minor's full performance. minor-returns what he/she had been enriched with

contracts for which no assistance is required

banks-opening a deposit account (age 16) and children over 12 consent to non-invasive medical treatment

3 ways you can get married

In community of property,Out of community of property and Out of community of property with the accrual system

Marriage In Community of Property

assets belonging to each spouse before the marriage, are merged into a single estate upon marriage, and they become joint owners of each other's assets. same for liabilities and property. If get divorced, assets split in half.

Marriage In Community of Property 's contractual capacity

need the consent of their spouses to conclude certain agreements that affect the joint estate .written consent of non-contracting spouse is needed for property/shares. Verbal consent, sale of furniture.

Out of community of property

Each party (spouse) retains, as their own separate property, whatever they acquired before the marriage and whatever they individually acquire during the marriage

insolvent

who's estate has been sequestrated (order of bankruptcy) by the "High Court"

· If someone is actually sequestrated by the court

estate is placed in the hands of a trustee (all the things are removed). The trustee will sell the assets and divide the proceeds among the creditors

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