Eldacc (Pty) Ltd v Bidvest Properties (Pty) Ltd (682/10) [2011] ZASCA 144 (26 September 2011)

Eldacc (Pty) Ltd v Bidvest Properties (Pty) Ltd (682/10) [2011] ZASCA 144 (26 September 2011)

The Supreme Court of Appeal held that clause 35 of the lease agreement constituted a valid stipulatio alteri, permitting the lessee or its nominee (Bidvest) to accept the option to purchase without any requirement for a written variation of the contract. The nomination and acceptance by Bidvest were precisely contemplated by the contract, and no variation occurred. The right to accept the benefit was independent of the right to keep the offer open, and Bidvest did not need to acquire Rennies' right before exercising its own. The legal relationship upon acceptance was directly between Eldacc and Bidvest. The appeal was dismissed, confirming the validity of the sale and the order for...

Citation
[2011] ZASCA 144
Parties
Appellant: Eldacc (Pty) Ltd; Respondent: Bidvest Properties (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 September 2011
Case Number
682/10
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court (johannesburg), First Instance
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Cloete, Van Heerden, Cachalia, Seriti, Plasket
Legal Topics
Stipulatio Alteri, Contract Variation, Specific Performance
Commercial and Corporate Stipulatio Alteri Contract Variation Specific Performance

Case Brief

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Parties

Eldacc (Pty) Ltd

Appellant

Bidvest Properties (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court (johannesburg), First Instance

Legal Issues

  1. 1 Whether the acceptance by Bidvest of the option to purchase constituted a variation of the original agreement requiring written form.
  2. 2 Whether Bidvest, as nominee, could validly exercise the option under clause 35 without a written variation.
  3. 3 Whether the stipulatio alteri mechanism was properly invoked and complied with.

Ratio Decidendi

The Supreme Court of Appeal held that clause 35 of the lease agreement constituted a valid stipulatio alteri, permitting the lessee or its nominee (Bidvest) to accept the option to purchase without any requirement for a written variation of the contract. The nomination and acceptance by Bidvest were precisely contemplated by the contract, and no variation occurred. The right to accept the benefit was independent of the right to keep the offer open, and Bidvest did not need to acquire Rennies' right before exercising its own. The legal relationship upon acceptance was directly between Eldacc and Bidvest. The appeal was dismissed, confirming the validity of the sale and the order for...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.