contract ought to apply upon breach of contract, cancellation and resilience, e.g. if the burden is not complied with (also submitted by Casebook: Enrichment(3) 144 note (b)). This would mean that the notion of modus would disappear completely when it has its origin in contract. This would be a sad day. Nevertheless, Page AJ confirmed in the case of Benoni Town Council v Minister of Agricultural Credit And Land Tenure 1978(T) that the non- compliance with a modus (in regard to the manner in which the given soil was to be used) originating in a contract resulted in a breach of contract being a contractual obligation not met (confirmed by Sonnekus “Unjustified Enrichment” 104 fn32). Whenever the modus originates in a will it would seem that in situations (i) and (ii) above there is uncertainty as to the enforceability of the modus and to the person entitled to enforce it. In the (iii) instance above it is submitted that the non-compliance with the burden in the testament will allow the third party to claim with the secuta. De Wet and Van Wyk (155) are of another opinion, namely that when a benefit is burdened in terms of a contract or will, it gives origin to “unconditional” obligations. The benefit or gift may be claimed before the burden (modus) is complied with. Two conclusions may be drawn from this approach. On the one hand, were the burden not be complied with, the gift or the
LCSP 4814 67 benefit would continue unabated, but the non-compliance with the modus would result in breach of contract. Approached in this way, the application of enrichment actions becomes obsolete, because contractual remedies are exclusively employed [confirmed in Baker v Probert 1985 3 SA 429(A) and followed in Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours (1998 4 SA 802(W))]. On the other hand, and this is the more probable conclusion, were the modus seen as neither a contractual obligation, nor as a contract for the benefit of a third party, then it is a burden that influences the continued existence of the benefit or gift indirectly. In this case the condictio causa data comes clearly into the picture, because compliance with the burden (similar to the condition) is aimed at the future – it has a causa futura – and because the burden cannot be enforced contractually (indeed, the contract came about unconditionally with the modus as an afterthought), the enrichment brought about by the non-compliance with the burden will have to be recovered by way of the secuta. For more on this topic, see Shell Co of SA Ltd v Gerrans Garage (Pty) Ltd 1954 4 SA 752(GWLD): 758H-759H per Beyers J (contra Jacques du Plessis “Enrichment”: 184). ACTIVITY 1. Why does Broeksma J consider the approval of the credit facility in the near future as an assumption underlying the cancellation agreement? (Williams v Evans 1174C1175E). Would it not rather be a suspensive or resolutive condition? Substantiate your answer. Does it really matter whether it is an assumption or condition? Explain. Would it have made a difference if enrichment were to be applied?
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