Jurgens Eiendomsagente v Sharè (632/88) [1990] ZASCA 81; 1990 (4) SA 664 (AD); [1990] 2 All SA 548 (A) (3 September 1990)

Jurgens Eiendomsagente v Sharè (632/88) [1990] ZASCA 81; 1990 (4) SA 664 (AD); [1990] 2 All SA 548 (A) (3 September 1990)

The Supreme Court of Appeal held that clause 2(d) of the sale agreement was, in essence, a time clause and not a suspensive condition. The agent's entitlement to commission under clause 9 was not defeated by the purchaser's failure to provide the guarantee by the stipulated date, as the commission was earned upon acceptance of the offer and was payable even if the sale was cancelled. The pleadings, though referring to 'conditions', did not confine the appellant to a cause of action based solely on a suspensive condition, as the substance of the claim was for commission under clause 9 upon fulfilment of the prerequisites for its operation. The respondent's argument that the agent was not...

Citation
[1990] ZASCA 81
Parties
Appellant: Jurgens Eiendomsagente; Respondent: George Charles Sharè
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
3 September 1990
Case Number
632/88
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Provincial Division, After Magistrate's Court and High Court Decisions
Outcome
Appeal upheld; judgment for the appellant for commission and costs, with cost adjustments.
Judges
Nienaber, Hoexter, Kumleben
Legal Topics
Estate Agency Commission, Suspensive Condition, Stipulatio Alteri, Contract Interpretation
Commercial and Corporate Estate Agency Commission Suspensive Condition Stipulatio Alteri Contract Interpretation

Case Brief

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Parties

Jurgens Eiendomsagente

Appellant

George Charles Sharè

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Provincial Division, After Magistrate's Court and High Court Decisions

Legal Issues

  1. 1 Whether clause 2(d) of the sale agreement constituted a suspensive condition or a time clause.
  2. 2 Whether the agent's entitlement to commission depended on fulfilment of clause 2(d).
  3. 3 Whether the pleadings confined the appellant to a cause of action based on a suspensive condition.

Ratio Decidendi

The Supreme Court of Appeal held that clause 2(d) of the sale agreement was, in essence, a time clause and not a suspensive condition. The agent's entitlement to commission under clause 9 was not defeated by the purchaser's failure to provide the guarantee by the stipulated date, as the commission was earned upon acceptance of the offer and was payable even if the sale was cancelled. The pleadings, though referring to 'conditions', did not confine the appellant to a cause of action based solely on a suspensive condition, as the substance of the claim was for commission under clause 9 upon fulfilment of the prerequisites for its operation. The respondent's argument that the agent was not...

Court Disposition

Appeal upheld; judgment for the appellant for commission and costs, with cost adjustments.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo is amended to grant judgment for the appellant (plaintiff) for R2,500.