De Swartd v House of Trucks (EDMS) Beperk (19/2002) [2003] ZAFSHC 18 (4 September 2003)

De Swartd v House of Trucks (EDMS) Beperk (19/2002) [2003] ZAFSHC 18 (4 September 2003)

The court found on a balance of probabilities that a binding oral contract was concluded on 8 February 2001 between the plaintiff and defendant for the manufacture and delivery of two tanker trailers at a price of R512,000 plus VAT per unit. The exclusion of consequential damages contained in the written quotation was not communicated to the plaintiff prior to contract formation and was therefore not incorporated into the contract. The defendant's conduct, including repeated attempts to repair the defective tankers and correspondence acknowledging the contract, confirmed the existence of the agreement and the implied warranty for fitness for purpose. The plaintiff was entitled to claim...

Citation
[2003] ZAFSHC 18
Parties
Plaintiff: Daleen Alta De Swartd; Defendant: The House of Trucks (EDMS) Beperk
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 September 2003
Case Number
19/2002
Procedural Posture
Civil Trial / Merits Hearing on Contractual Formation and Terms
Outcome
Judgment in favour of the plaintiff on the disputed issues; costs awarded to the plaintiff, including costs of two counsel.
Judges
Beckley, R
Legal Topics
Contract Formation, Exclusion of Consequential Damage, Oral Agreement, Warranty, Specific Performance
Commercial and Corporate Civil Procedure Contract Formation Exclusion of Consequential Damage Oral Agreement Warranty Specific Performance

Case Brief

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Parties

Daleen Alta De Swartd

Plaintiff

The House of Trucks (EDMS) Beperk

Defendant

Procedural Posture

Civil Trial / Merits Hearing on Contractual Formation and Terms

Legal Issues

  1. 1 Whether a binding contract for the manufacture and delivery of two tanker trailers was concluded between the plaintiff and defendant.
  2. 2 Whether the exclusion of consequential damages formed part of the contract terms.
  3. 3 Whether the oral agreement and subsequent conduct incorporated a warranty for the tankers' fitness for purpose.

Ratio Decidendi

The court found on a balance of probabilities that a binding oral contract was concluded on 8 February 2001 between the plaintiff and defendant for the manufacture and delivery of two tanker trailers at a price of R512,000 plus VAT per unit. The exclusion of consequential damages contained in the written quotation was not communicated to the plaintiff prior to contract formation and was therefore not incorporated into the contract. The defendant's conduct, including repeated attempts to repair the defective tankers and correspondence acknowledging the contract, confirmed the existence of the agreement and the implied warranty for fitness for purpose. The plaintiff was entitled to claim...

Court Disposition

Judgment in favour of the plaintiff on the disputed issues; costs awarded to the plaintiff, including costs of two counsel.

Orders

  • The disputes set out in paragraphs 3, 4, 5 and 11 of the plaintiff's particulars of claim, read with the corresponding paragraphs in the defendant's plea, are decided in favour of the plaintiff.
  • The defendant is ordered to pay the costs associated with the determination of the aforementioned disputes, including the costs of two counsel.