Robertson v Fourie (CA&R 8/2019) [2021] ZANCHC 15 (26 March 2021)

Robertson v Fourie (CA&R 8/2019) [2021] ZANCHC 15 (26 March 2021)

The court found that the appellant, with full knowledge that the Tsessebe cows could not be certified pregnant and after being given the option not to take the animals, nevertheless accepted delivery and made payment as per the agreement. The appellant's conduct and words at the time, as well as his failure to negotiate a reduced price or take steps to confirm pregnancy after delivery, constituted an unequivocal outward manifestation of an intention to waive the requirement of pregnancy. The perspective of the respondent and the seller reasonably led them to believe that the appellant had accepted the risk of non-pregnancy. The magistrate was correct in finding that the appellant had...

Citation
[2021] ZANCHC 15
Parties
Appellant: Tommy Robertson; Respondent: Schalk Willem Fourie
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
26 March 2021
Case Number
CA&R 8/2019
Procedural Posture
Civil Appeal / Appeal From Magistrates Court Judgment
Outcome
Appeal dismissed with costs.
Judges
Williams, Lever
Legal Topics
Oral Contract, Waiver of Rights, Sale of Goods, Onus of Proof, Contractual Terms
Commercial and Corporate Oral Contract Waiver of Rights Sale of Goods Onus of Proof Contractual Terms

Case Brief

Summary, issues, holding and outcome

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Parties

Tommy Robertson

Appellant

Schalk Willem Fourie

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates Court Judgment

Legal Issues

  1. 1 Whether the appellant waived the contractual requirement that the Tsessebe cows be pregnant.
  2. 2 Whether the magistrate was correct in finding for the respondent on the issue of waiver.

Ratio Decidendi

The court found that the appellant, with full knowledge that the Tsessebe cows could not be certified pregnant and after being given the option not to take the animals, nevertheless accepted delivery and made payment as per the agreement. The appellant's conduct and words at the time, as well as his failure to negotiate a reduced price or take steps to confirm pregnancy after delivery, constituted an unequivocal outward manifestation of an intention to waive the requirement of pregnancy. The perspective of the respondent and the seller reasonably led them to believe that the appellant had accepted the risk of non-pregnancy. The magistrate was correct in finding that the appellant had...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.