The contract expressly stated that it would endure until 'the final date of privatisation‘, the date of privatisation of the Blue Train remained uncertain because of extensions, Transnet gave Rubenstein two months' notice of termination of the contract in 1999 on the basis that the contract was void. SCA = matter of construction of the clause, the question being whether a tacit term to that effect was implied into the contract. Held, that when a contract is not silent/express as to its duration, but is stated to be terminable upon the happening of an uncertain future event, the position was different and not void.
LEARNING UNIT 5: CONDICTIO OB TURPEM VEL INIUSTAM CAUSAM
1. Distinguishing features: This enrichment action consists of two parts: 1) Ob turpem causum (illegal/immoral); and 2) Vel iniustam causam (unreasonable) = It is regarded as one single action 2. Purpose : To restore money and or property (or its equivalent tvalue), which has been transferred in terms of an unlawful / illegal contract.
Unlawful / illegal for the purpose of this action includes dishonourable / immoral (ob turpem) and unlawful / unreasonable (iniustam) performanes leading to a contract which is void, voidable or unenforceable depending on the circumstances. (Example: Extortion - dishonourable conduct; Charging to much interest - unlawful) 3. WHEN WILL A CONTRACT BE DEEMED TO BE ILLEGAL? Common law illegality: this is where the manner of conclusion, or the content and purpose of the performance is contra bonos mores / against public policy. 2) Statutory illegality: this is where the performance is prohibited expressly or by implication in statute. General rule : In the event of illegality, the contract is void and thus no causa/cause of action can be available to the parties. HOWEVER, in respect of statutory illegality, this rule is not inflexible and it has been stated in case law that each case should be judged on its own merits and the intention of the Legislature must be considered when deciding if a contract is to be declared void and unenforceable. Distinction between void and unenforceable vs void/able due to a lack of compliance with formalities ito correct remedy. [Note: formalities can often be corrected especially if persons were unaware.] Where a contract is void due to illegality = the Ob Turpem applies (illegality is a requirement for the Ob Turpem) Where a contract is void/able due to a lack of compliance with formalities and the contract is not dishonourable =
the contract is not illegal then the Condictio Indebiti applies. [SEE: Discussion of MCC Bazaar v Harris and Jones PTY LTD and Dugas v Kempster Sedgwick on Page 81- 82 in your study guide] 4. Four Requirements for the Ob turpem action 1. OWNERSHIP MUST HAVE PASSED WITH TRANSFER OF MONEY / PROPERTY 2. PLAINTIFF TENDERS/RETURNS WHAT HE RECEIVED 3. TRANSFER IN TERMS OF ILLEGAL CONTRACT 4. PLAINTIFF MUST BE WITHOUT DISHONOURABLE CONDUCT (TURPITUDO) In both Roman and Roman Dutch law the defendant had to be the only one having turpitudo.
You've reached the end of your free preview.
Want to read all 45 pages?
- Fall '18
- The Road, Obligations