De Villiers v McCay NO and Another (6077/04) [2007] ZAWCHC 10 (28 February 2007)

De Villiers v McCay NO and Another (6077/04) [2007] ZAWCHC 10 (28 February 2007)

The court found that the undertaking given by the plaintiff, which induced the conclusion of the main agreement, became impossible to perform due to the sequestration of the Development Trust. This impossibility terminated the undertaking ab initio, and, as a prior inducing contract, its failure also terminated the main agreement. The court held that restitution was required, meaning both parties must restore what they received under the respective contracts. The defendants were entitled to recover the claims against the Development Trust, and the plaintiff was entitled to repayment of the purchase price. The parol evidence rule did not preclude evidence of the undertaking as a separate...

Citation
[2007] ZAWCHC 10
Parties
Plaintiff: Izak Adriaan Johan De Villiers; Defendant: David Lawrence Cornelius McCay N.O.; Defendant: Marlene McCay N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 February 2007
Case Number
6077/04
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claim dismissed; defendants' claim-in-reconvention for termination and restitution granted.
Judges
Thring
Legal Topics
Prior Inducing Contract, Impossibility of Performance, Restitution, Parol Evidence Rule, Contract Termination
Commercial and Corporate Civil Procedure Prior Inducing Contract Impossibility of Performance Restitution Parol Evidence Rule Contract Termination

Case Brief

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Parties

Izak Adriaan Johan De Villiers

Plaintiff

David Lawrence Cornelius McCay N.O.

Defendant

Marlene McCay N.O.

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the main agreement was entirely written or partly oral due to the prior inducing contract.
  2. 2 Whether the plaintiff's obligations under the undertaking were reciprocal to the WCT's obligations under the main agreement.
  3. 3 Whether supervening impossibility of performance terminated the undertaking and the main agreement.

Ratio Decidendi

The court found that the undertaking given by the plaintiff, which induced the conclusion of the main agreement, became impossible to perform due to the sequestration of the Development Trust. This impossibility terminated the undertaking ab initio, and, as a prior inducing contract, its failure also terminated the main agreement. The court held that restitution was required, meaning both parties must restore what they received under the respective contracts. The defendants were entitled to recover the claims against the Development Trust, and the plaintiff was entitled to repayment of the purchase price. The parol evidence rule did not preclude evidence of the undertaking as a separate...

Court Disposition

Plaintiff's claim dismissed; defendants' claim-in-reconvention for termination and restitution granted.

Orders

  • Judgment is given in favour of the defendants on the plaintiff's claim, with costs.
  • An order is granted declaring that the agreement between the parties has been terminated, with costs.