2 there must be a duty not to prevent the fulfillment

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2. There must be a duty not to prevent the fulfillment of the condition. This can be a tacit duty. If you make a contact of sale subject to bond approval, the parties obviously intend that the buyer attempts to get a bond. Thus the buyer has a clear duty to try and fulfill the condition. Whether or not this is required depends on the facts of each case. The burden of proof rests on the plaintiff for the first two requirements. 3. There must be a causal link between the conduct of the defendant and the non- fulfillment of the condition. If the buyer did not apply for a bond due to the fact that there was absolutely no chance of him getting approved then fictional fulfillment would not apply. Thus there was no chance of the condition being fulfilled anyway, even if he took the required steps. The burden of proof shifts to the defendant here (the party who was supposed to take the steps). Thanolda Estate case – Thanolda sold land to the buyer subject to a suspensive condition that approval of subdivision and the town development be obtained. The condition was not fulfilled. On the facts it was the buyer who was supposed to take steps to initiate the permission process. The seller relied on the fictional fulfillment of the condition and wanted the buyer to take transfer of the house, on the basis that he did not take any steps to begin the approval process. The buyer said that he did not apply because he realized that his application was doomed from the start – he would not have gotten permission even if he had applied. The court said that this doctrine is based on fairness, and asked themselves whether there must be some causal connection between the defendant’s conduct and the non-fulfillment of the condition. If the defendant takes no steps, there is an onus on the defendant to show the absence of the causal connection. Thus if the buyer shows that it would have been futile to take any steps, then the doctrine of fictional fulfillment will not apply. On the facts of this case the court found that the buyer did not discharge that burden of proof – there was a possibility that permission would have been granted. 6. Exemption clauses Definition : a clause limiting or excluding liability of one of the parties that would otherwise be implied by law. Example : “Voetstoots” clause – the thing sold is sold ‘as is’ including all its defects. This excludes the seller’s liability for latent defects. Stocks & Stocks v TJ Daly – there was an alleged “owners risk” clause – that the goods would be transported to the buyer at the risk of the owner. In principle, unless there is legislation that prohibits them, freedom of contract implies that parties are free to exclude the naturalia . However the courts have placed increasing limits on the party’s ability to do this.

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