If not, the lessee would have had to have put the lessor to terms and failing compliance with these terms, the lessee would be entitled to. The usual grounds of cancellation are: (a) Where there has been a major breach, for example, where delivery becomes impossible whether through the fault or otherwise of the lessor.
(b) Where the lessor refuses to deliver at all or substantially this would amount to repudiation giving the lessee an election whether or not to cancel. © Where delivery is late and time is or is made or has become of the essence, for example (d)Where the property is substantially unfit for the purpose leased and the lessor cannot or will not rectify within a reasonable time. In the cases of Treasure Chest v Tambuti Enterprises (Pty) Ltd 1975 (2) SA 738 A and Shapiro Yutar 1930 CPD 92 the Courts seems to have answered the question ‘Is there a substantial breach of the lease contract?’ by examining the question of whether or not an opportunity was afforded to the lessor to repair and, if so, what his reaction was and how soon, if at all, the repair could be effected. Both cases point to the conclusion that the inconvenience occasioned by the unfit condition of the premises must be substantial. Claim a reduction in rent If the breach is not substantial enough to justify cancellation of the contract of lease, for example, a delay in delivery or the condition of the property, the lessee is entitled to a reduction in rent in proportion to his / her reduced use and enjoyment of the property. See Ntshiqa v Andreas Supermarket 1997 (1) SA 184 (K) as an example of this type of remedy. 61 Repair and charge lessor (possible reduction in rent) If the lessor, having been called upon to remedy an unfit condition in the property, refuses, the lessee may carry out the necessary repairs and deduct the cost from the rental. Where the cost can be set off against the rent, the lessee will be safe in unilaterally remitting the rent. He would have to be sure that the repairs were necessary and the cost would have had to be incurred. But where the lessor may cancel in the event of non-payment of rent and the lessee does not want that to happen it is always advisable to seek the intervention of the Court before unilaterally remitting the rent. Damages
Alternatively, or in addition to another remedy, the lessee may claim damages for any foreseeable loss arising from the breach based upon the contractual standard; that is, the lessor must place the lessee as far as it is possible to do this by a payment of money, in the position she would have been in had performance been properly made (the reasonable foreseeability rule of the general law of contract.). But where the lessee seeks damages arising from an unfit condition in the property the Courts might well require him to prove that the lessor knew or ought to have known of the need for the repair and had a reasonable opportunity to repair.
- Fall '17
- Contract Law, Lessee, Lessor