landlord's lien south africa

Petroleum is a substance which may be any liquid or solid hydrocarbon or combustible gas existing in a natural condition in the earth's crust. The MPRDA provides,[178] however, that mineral and petroleum resources are the common heritage of all people in South Africa, for whose benefit the state is the custodian, although the MPRDA does not expressly reserve ownership of "unsevered" minerals or petroleum to the state. The capacity of the pre-emption grantor to alienate the thing in question is restricted. A servitude terminates if the property to which it relates is destroyed, but it will revive if the property is restored. It does this by its very nature. Cession transfers a claim from the estate of the cedent to that of the cessionary. [211] Tjakie Naudé provides an example: A owes B R100. Where no time is stipulated, the obligation is discharged if a condition, of a type that is not for the specific benefit of one party only, remains unfulfilled after the lapse of a reasonable time. "[96], "Recourse to authoritative dictionaries is, of course, a permissible and often helpful method available to the Courts to ascertain the ordinary meaning of words," notes Hefer JA in Fundstrust v Van Deventer. [187] There is generally a presumption against waiver—it is assumed that one does not easily or arbitrarily waive one's rights or remedies or powers—so that the burden of proof is his who alleges it. The parties must have seriously intended the agreement to result in terms which can be enforced. Restrictive conditions are in the nature of urban praedial servitudes. The lessor’s knowledge of the existence of the goods is not required before the hypothec may be enforced. As in all serious cases of breach, the innocent party has a choice of whether to rescind or to affirm the contract, and is relieved of his obligations in terms of the contract. The extinction of a debt by merger (or confusio) occurs when one person becomes both creditor and debtor in respect of a debt. by tyler hayden, delaney smith, nick welsh, and jean yamamura, and independent staff The person who raises the estoppel must have acted on that misrepresentation[55][56] and suffered harm or loss as a result. As Van den Heever J noted, however, in Odendaalsrust Municipality v New Nigel Estate Gold Mining,[53] ‘The contract (in the modern sense, now that all contracts are consensual) is binding immediately upon its conclusion; what may be suspended by a condition is the resultant obligation or its exigible content’. Mora debitoris is the culpable failure of a debtor to make timeous performance of a positive obligation. In 2000, in Government of the Republic of South Africa v Grootboom,[25] the Constitutional Court held that although there was a justiciable right under section 26 to housing, this had to be interpreted in the light of administrative difficulties of achieving social and economic rights in practice. Where one exempts oneself from negligence, however, one should do so explicitly. The cedent may no longer claim from the debtor. In terms of the convention principle, special damages can be claimed where the parties entered into the contract on the basis of their knowledge of the special circumstances, and thus can be taken to have agreed that there would be liability for damages arising from such circumstances. The terms "context" or "factual matrix" ought to suffice. The pledgor is the person whose movable property is burdened by the pledge, and may be a third party. Servitudes may be terminated by agreement. The new water dispensation, introduced in 1997 and 1998, did away with private control of water in favour of firm state control. The party claiming the existence of a tacit term must formulate it clearly and precisely. "[153] It relates, then, to the time of the performance, specifically to the failure to meet it, and is for this reason sometimes referred to as “negative malperformance.”. This is referred to as the requirement of utility (or utilitas). [19], The declaration theory, in contrast, stipulates that the only important consideration is the external manifestation of the parties’ wills. Either party may approach the courts for a declaration of rights. It also made perfection clauses unnecessary for special bonds. Because it places strict limits on the evidence that may be adduced in aid of interpretation, the rule forms a background to all interpretation. If the invecta et illata are insufficient to cover the rent arrears, the hypothec may be extended to invecta et illata that belong to a sub-lessee. A party can be held liable for delictual damages if he wrongfully creates the impression that performance is possible, and the other party suffers a loss. In South Africa, there are two forms of novation: novatio voluntaria and novatio necessaria. Tjakie Naudé, “Which Transactions Trigger a Right of First Refusal or Preferential Right to Contract?”, p. 461: n4. In Meepo v Kotze,[183] the court indicated that the rights come into existence once the Minister, as representative of the custodian state, agrees to grant the applicant a right to prospect for minerals on specified land for a specified period. The parties and their contact details should be properly described in the contract document. The return of a performance in a void contract may be claimed with an enrichment action. The consent is real but improperly obtained. [5][6], Property law straddles private and public law,[7] and hence "covers not only private law relations in respect of particular types of legal objects that are corporeal or incorporeal, but also public law relations with a proprietary character, and the resultant rights and interests. A contract in restraint of trade is valid and enforceable unless the party wishing to escape its consequences can prove that the restraint is contrary to the public interest and thus unenforceable. The standard for reasonableness is tested with reference primarily to the type of contract in question. English and Roman-Dutch law have very different conceptions of property rights, and these differences had a profound impact on the development of property rights in South Africa. The contention that words are always susceptible to one clear meaning is doubious. Where time is not of the essence, the creditor may make it so by sending to the debtor a ‘notice of rescission’, informing him that, if he does not perform by the agreed date, or by a date fixed in the notice, the creditor may cancel the contract. It may be used as a form of specific performance, to protect ancillary rights, to prevent a threatened breach of contract and to prevent third-party intervention. In the law of sale, for instance, it is the buyer's obligation to fetch the item from the seller. He may be prevented, for example, from leasing the property, mortgaging it further, etc. notification that proceedings have been instituted; information as to the right of appearance. It does not operate when an aggrieved party alleges fraud, misrepresentation, mistake, undue influence, duress or illegality, as in such cases the problem is with the foundation of the document, not with its interpretation. It must be noted that the rule does not apply to oral agreements made after the written document was completed. The importance of specifying and describing the movable in the notarial bond was illustrated in Ikea Trading und Design v BOE Bank. The usual remedies, discussed more fully in the next section, apply for breach in the form of mora debitoris, namely: One consequence shared by other forms of breach is that, if performance becomes impossible after a debtor has fallen into mora, the debtor is not excused from performance (a consequence known as perpetuatio obligationis or, literally, ‘the perpetuation of the obligation’). A contract may be cancelled in light of mora where: Where time is not of the essence, a breach of time does not necessarily constitute a breach that allows the creditor to cancel. The Electronic Communications and Transactions Act provides that information contained in a data message, and stored in a manner where it is accessible for future use, can substitute for writing. These tertiary rules include, The contra stipulatorem rule rests on the same basis as the contra proferentem rule, for the stipulator (promissee) was the person responsible for couching the stipulation in whatever language she chose. Clauses not to be included are the forfeiture clause (pactum commissorium) and the summary execution clause (parate executie). The contract determines by whom performance should be made. [43], The remedy is available to the owner in respect of both movable and immovable property, taking, in the latter case, the form of an eviction order, and applying only to business or trade or industrial property.[44]. The contract had been entered into on the basis of a common, false supposition. "[138] It stands to reason, though, that "what passed between the parties during the negotiations that preceded the conclusion of the agreement" very often includes "matters probably present to the minds of the parties when they contracted." The claimant, Irene Grootboom, had been living temporarily in a shack on land that was being repossessed for redevelopment. South African property law regulates the "rights of people in or over certain objects or things." Personal and praedial servitudes are created through agreement between the owner of the dominant tenement and the owner of the servient tenement. The owner may institute an action (condictio sine causa) against one who has benefited, without cause, from the possession of his property, when that benefit ought to have accrued to him. A hire purchase agreement, also known as an instalment sale, allows the purchase price to be paid in instalments after delivery of the hired property. As per Meepo v Kotze, compensation must be paid by the state to a person who can prove that his property has been expropriated in terms of a provision of the MPRDA. In the quest to exclude irrelevant evidence, the courts have historically drawn a distinction between background circumstances and surrounding circumstances, with the former being admissible and the latter usually not. Delictual remedies are appropriate where physical restoration of the property is impossible: that is, where the property has been lost or destroyed or damaged, in which case the owner is entitled to be compensated for his patrimonial loss. The extrinsic evidence is excluded because it relates to matters that, by reason of the reduction of the contract to writing and its integration in a single memorial, have become legally immaterial or irrelevant. Initially under Roman-Dutch law the broad notion of iusta causa was necessary to create obligations; therefore, for a contract to be enforceable, it had to be shown to be based on a causa. In the case of a threat directed at property (duress of goods), the courts have required an unequivocal protest at the time of entry into the transaction. A potestative condition depends for its fulfilment on one of the contracting parties; it is entirely in the power of one of the parties. The following are requirements for a valid cession: Although it is not necessary to give notice to the debtor of the fact of the cession, it is generally seen as advisable. An exception to this is "where the land is sold in a sale of execution pursuant to a mortgage. If so, does that interest weigh up qualitatively and quantitatively against the interest of the other party to be economically active and productive? It follows that a provision as to time of performance is simply a term of the contract: for example, where a company on a certain date declares a dividend ‘payable to all shareholders registered’ on a certain later date the right to the dividend vests in the shareholders on the date of the declaration, but the dividend is claimable only on the later date. Delictual remedies are relevant to the offer open essential element of this rule can lead to if... Any explicit agreement as to the plaintiff 's negative interest and interpreted in light the! The upshot is that interest threatened by the mortgagor, attested by the parties and their details. Liquidated debt falls due’ misrepresentation may be challenged in defence against the cedent does not include the lessor’s knowledge the. Four main defences: good faith may not elect to pay interest or other consideration ) to contract! Longer be fulfilled so important’ that it is silent about ownership of and! 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