Helene Viljoen 5 minutes read
*This feature was compiled by Helene Viljoen, attorney and director of law firm Helene Viljoen Incorporated. “A man who is his own lawyer has a fool for a client.” This age-old saying, especially popular among lawyers, indicates that taking care of your own legal affairs is not generally advised – even if you are a qualified lawyer.
When it comes to drafting contracts that could have a far-reaching effect on those involved, experts advise roping in a professional. That said, there are many South Africans who prefer to draw up and manage their contracts themselves. This article sets out the basic principles of South African contract law and provides a checklist for thorough drafting.
A contract is an agreement between two or more parties, entered into with the clear intention of creating legal obligations.
Not necessarily. There are statutes stipulating that some contracts must be in writing to be valid. One example is the Alienation of Land Act 68 of 1961 in terms of which all contracts for the sale, donation and exchange of land must be in writing. Other oral contracts may be enforceable once the requirements for a valid contract have been met.
That said, it is best to stick to written contracts as a rule of thumb. Practically speaking, it is easier to prove the existence and content of a written agreement than it is of a verbal one.
Firstly, ensure that the parties entering into the agreement have the capacity and ability to do so. Those who have been declared insane or mentally unfit to manage their own affairs will, for example, not have contracting capacity.
Secondly, those entering into the agreement must know exactly what they are agreeing to. They must agree to the contract’s terms and conditions. These terms and conditions must be lawful, and their requirements practically possible, to render them enforceable.
Thirdly, the specific type of contract entered into will come with its own set of requirements. For example, in a contract to supply services, the work to be done, time schedule and applicable payment provisions should be dealt with.
Regardless of the type of contract you are dealing with, certain basics will always be important. For example, the parties must be clearly identified and described. Agreements must be dated. The duties of each party must be properly defined, and the appropriate guidance given on the execution of duties. If any conditions are to precede the start or end of the agreement, this must be indicated.
The duration of the agreement should be stipulated, as well as circumstances that would constitute a breach of the contract, in which case appropriate responses to the breach should be set out. The document may also set out scenarios warranting premature termination of the agreement.
Lastly, space must be provided for the signatories to sign the contract. It is often advised that this be done in the presence of witnesses. Remember that signatories who represent either party must be duly authorised to do so.
While each contract will come with specific requirements, and contents should be deliberated on a case-by-case basis, the below checklist will guide you in ensuring that all the necessary details are included.
| Content | Description |
| Parties | Identify and describe the parties accurately. |
| Preamble | While not a technical requirement, a preamble may serve as an introduction to the agreement, briefly setting out what the purpose of the agreement is. |
| Definition and interpretation clause | In the context of a specific contract, it may be necessary to define certain key terms to avoid confusion or misinterpretation. |
For example, in a contract of sale, the risk would normally pass to the purchaser once there is agreement on the item sold, the price, and the fulfilment of any applicable conditions. If the parties wish to come to a different arrangement on when the risk passes, this exception must be recorded in writing.
For example, in an agreement of sale, the parties may want to make special arrangements regarding delivery. This will qualify as incidentalia.
When considering incidentalia, you may want to ask: How are we going to execute this agreement practically? Which logistics do we need to put in writing? Are there any specific points we need one another to agree on?
In South Africa, a contract would usually state that it is governed by South African law, and that South African courts will have jurisdiction over it.
Disclaimer: Information provided in this article does not constitute legal advice, nor should it be construed as such.
