MISTAKE

This occurs when each party is mistaken about the others intention so that the parties are at
cross-purposes. In solving this problem the court usually applies the doctrine of quasi mutual
assent. Courts have adopted two approaches namely:
i.

if one parties understanding what has been agreed is unreasonable in that it conflicts
with the impression he has given to the other party, he will be deemed to have agreed

ii.

in accordance with the impression he has given.

If each parties understanding/mistake is reasonable then there will be no contract
between the parties

Maritz v Pratley (1894) 11 SC 345

Where M, was an auctioneer, called for bids lot 1208 which was the successful bidder but he
refused to pay because he thought he had bought the mantel piece together with a mirror
which was standing on it. The mirror was infact a separate lot 1209. The court held that
Pratleys mistake in thinking that Maritz intended to sell the Mantel piece and mirror together
was held to be reasonable and Maritzs mistake in thinking that Pratley was bidding for the
mantel piece only was obviously reasonable. The court held this to be a case of mutual
mistake and there was no contract.
OR
Maritz v Pratley (1894) sc
In this case it was held that there was dissensus not consensus. An auctioneer held a sale in a
store. All articles were catalogued and the catalogue was printed and circulated. Pratley read
the catalogue. One condition of the sale, stated in the catalogue was that purchasers were to
acquaint themselves with the articles under offer. In addition this condition was read out at
the beginning of the sale. Lot 1208 was a mantelpiece on which stood Lot 1209, a large
mirror.
The auctioneer called for bids for what he intended to be Lot 1208 [the mantelpiece/table]
alone but Pratley bid thinking that the mirror [Lot 1209] was also included. Lot 1208 was
knocked down to Pratley and the auctioneer proceeded to sell Lot 1209 to another person.
The circumstances were such that at one moment a member of the audience asked what it was
the auctioneer was selling.

Pratley refused to pay both the price and the commission on the mantelpiece only. The court
held that there was no sale due to bona fide mistake: Pratley did not agree to purchase the
same thing that the seller/auctioneer was endovouring to sell. Both acted reasonably in the
circumstances.
At an auction, prospective buyers were asked to inspect the goods before buying them. There
was a mirror on top of a marble table. Pratley bid for the table thinking that the mirror was
part of the table. When he refused to pay for the goods separately, he was sued by the
auctioneer. It was held that there was a mistake, consequently the parties minds did not meet
and the contract was void.

MISPRESENTATION
Donner Motors v Kufinya 1968 SA
The parties agreed to sell each other a car. The seller agreed to rectify the defects on the car
and the buyer then signed a contract. The contract however, had a voetstoots clause, which
the buyer had not seen. The seller relied on this clause in refusing to effect repairs. The court
said the contract could be set because of misrepresentation by the seller.
Dibley v Furter 1951, SA
The buyer of a farm sued the seller alleging that the seller had failed to disclose that the farm
has a graveyard. It was held, the buyer could not seek relief but could rely on fraudulent
misrepresentation by the seller because even though the farm could still be used for the
purpose for which it was bought (the graveyard had been ploughed over), the buyer would
not have bought the farm had he known about the graveyard. Restitution was granted.
A seller sold a farm some 4 acres (1.5 ha) on which there stood a dwelling house. A
substantial portion of the farm had been used as a graveyard in which over 80 people had
been buried in the four years before the sale. With no intention to deceive, the owner had
removed all external indications of the graves to allow him to cultivate the land. The seller
did not disclose the existence of these graves. The court held that the buyer was entitled to
cancel the contract and claim damages.
Non-disclosure of a material latent defect [in order to mislead a buyer and induce a sale]
known to the seller is fraudulent misrepresentation.

OR
Dibley v Furter, 1951
Furter sold a four-acre farm to Dibley knowing that one acre of it had, until shortly before the
conclusion of the sale, been a graveyard that had since been ploughed over. He failed,
however, to disclose the existence of the graveyard to Dibley. When Dibley found out about
the graveyard, he tendered the return of the farm and sued Furter for a refund of the price
paid for it.
Mr Justice Van Zyl held that the graveyard could not be said to constitute a defect, since even
the portion of the farm on which it had been situated was capable of being used for the
purpose of farming. But the failure by Furter to reveal the existence of the graveyard
constituted a fraudulent misrepresentation, because the presence of graves on the property
was such a peculiar feature that Furter had a duty to disclose it. He knew that Dibley was
unaware of the graveyard and had no reason to suspect that there was one on the property.
The majority of people, the court held, would not want to live on the property or own it.
Dibley was entitled to cancel the sale.

Lion Match Co. Ltd v Wesels, 1946.

Wessels sued for payment for wood sold and delivered in terms of an illegal contract because
Wessels did not have the necessary Government permit. Wessels failed in his action. He was
seeking enforcement of an illegal contract even though he may have been ignorant [as he
claimed] of the requirement for a permit. The ex turpi causa rule applied in this case because
Wessels sought to enforce performance by the company; not recovery of property delivered.
It makes no difference. If the plaintiff has himself made performance of his obligations, for
performance does not validate the agreement.

DURESS
Blackburn v Mitchell (1897) sc

A ship was in danger of sinking in bad weather. A tug came to the rescue and its captain
demanded 2 000 from the captain of the ship in peril. When the latter said it was too much,
the captain of the rescuing tug threatened to leave them to drown, whereupon the beleaguered
captain agreed. The court said the contract was void for duress.
The captain of the stricken ship had signed under protest. I will sign this bill, but you will
never get paid. The sailors were however entitled to fair and reasonable recompense
assessed at 1 000 instead of the original 2 000 demanded.
In the case of duress of goods [as here] as opposed to duress of person, the court will
require that in addition to the five points listed in Broodryk, there must have been a categoric
protest at the time of the contract.

Broodryk v Smuts no 1942 tpd

Broodryk a married man and with one child alleged he had enlisted for military service
following threats by two government officials that he would be regarded as hostile and
interned unless he did. He claimed rescission of the contract.
The court listed 5 elements for duress:
1)

Actual violence or reasonable fear.

2)

Fear must arise from threat of considerable evil to the party or his family

3)

Threat must be of imminent/inevitable evil

4)

Threat or intimidation must be contra bonos mores

5)

The pressure used must have caused damage.

The court ruled in Broodryks favour because of duress by the governments agents.
Broodryks fear was not vain or foolish; it was sufficient to overcome a mind of ordinary
firmness.

UNDUE INFLUENCE
Preller v Jordan 1956 sa
Jordaan [an elderly farmer] donated and transferred 4 farms to Preller [his doctor and advisor]
to be administered by Preller for the benefit of Jordaans wife and farm labourers. Preller
subsequently transferred one farm to his son and 2 to his daughter. Jordaan sought to recover
the farms arguing that he had been sick, spiritually weak, and mentally/physically exhausted
and had fallen totally under the influence of his doctor. He argued that Preller had used his
influence improperly otherwise he [Jordaan] would never have agreed to the transfer.
Restitution was granted for one farm still retained by Preller but not for the other three which
had been transferred to Prellers children. It was explained that a contract obtained by undue
influence is not void and is thus valid ab initio. It is merely voidable and so transfer had
passed irretrievably.
Patel v Grobbelaar, 1974.
Grobbelaar sought cancellation of a mortgage bond registered against his property in favour
of Patel thinking he owed Patel a loan for R40 000. Grobbelaar had been persuaded by Patel
to believe that Patel had supernatural powers. In fact Grobbelaar owed Patel no money.
The court ruled in Grobbelaars favour and they listed essential requirements for undue
influence as follows:
i.
ii.
iii.
iv.
v.

One party exercises influence over another.

That influence weakened his powers of resistance and made his will pliable.
The influence was exercised in an unscrupulous manner in order to obtain his consent.
The agreement is to his detriment
Under normal free will he would not have consented.

Under undue influence one party achieves dominance over another and uses that dominance
improperly to persuade the other into a prejudicial contract which he would not otherwise
make. The resultant contract may be set aside.

CONTRACTUAL CAPACITY

Stuttaford v Oberholzer 1921 CPD

Oberholzer a minor bought a motorcycle on hire- purchase. When he became a major, he
continued to ride the motorcycle but failed to pay instalments. When sued he pleaded
minority at the time of the contract as defence. Oberholzer was bound due to ratification by
deed as he continued to use the bike in full knowledge of his legal position.