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KTH - theme 3, 4, 5.pdf - Theme 3: Formalities -...

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Theme 3: Formalities-Formalities refers to the external visible form required for that specificcontract.-The general rule of common law is that no formalities are required for a validor enforceable contract of sale.Contract for sale of land: Formalities in terms of Alienation of Land Act:-Section 2(1) of the Alienation of Land Act requires the following formalitieswith regard to contracts for the purchase and sale of land: no alienation ofland after the commencement of this section shall, subject to the provisions ofsection 28, be of any force or effect, unless it is contained in a deed ofalienation signed by the parties thereto or by their agents acting on theirwritten authority.-The requirement that the agent must have the written authority of his principal,is excluded: where the agent acts with regard to a pre-incorporation contractof a company or close corporation not yet floated; where a partner acts onbehalf of the partnership; where a person is by operation of law authorized toact on behalf of another person, for eg a parent who purchases land on behalfof his/her minor child; where functionaries or organs act on behalf of acompany.-Alienate: means to sell, exchange or donate, irrespective of the fact that it issubject to a suspensive or resolutive condition, and alienation has acorresponding meaning.-Land: includes any unit; any right to claim transfer of land; any undividedshare in land.-Deed of alienation: described as a document or documents in terms of whichland is alienated, and has a wider meaning than contract.-The same requirements are also set in the Shareblocks Control Act and theTimeshare Control Act with regard to shareblock schemes and timeshareschemes.-The aim for statutory requirements is: to prevent disputes regarding thecontents of the contract; to prevent any uncertainties.Written contract required:
-The parol evidence rule applies which states that no verbal testimony isallowed in legal proceedings to supplement, change or contradict the terms ofa written contract.-Where the contract is valid, but the document does not reflect the trueintention of the parties, verbal testimony is allowed to prove the true intentionof the parties.Object sold must be clearly defined:-The written contract must clearly identify the object sold. If it cannot beidentified, the contract will be null and void.-General guidelines to determine whether an object sold has been definedcorrectly in law:An absolutely accurate description of the object sold is not required. Aslong as the object sold can be reduced to certainty, it is by itself certain.It should, however, be possible to determine the intention of the partiesto the contract with a reasonable degree of certainty.

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Term
Fall
Professor
S van wyk
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