Sommer v Wilding (258/82) [1984] ZASCA 53; [1984] 4 ALL SA 356 (AD) ; 1984 (3) SA 647 (A) (22 May 1984)

Sommer v Wilding (258/82) [1984] ZASCA 53; [1984] 4 ALL SA 356 (AD) ; 1984 (3) SA 647 (A) (22 May 1984)

The Supreme Court of Appeal held that the appellant, as the grantee of an option to purchase shares, was required to prove on a balance of probabilities that he would have exercised the option during its currency in order to establish a causal link between the respondent's breach and the damages claimed. The Court found that the appellant failed to discharge this onus, as the evidence indicated significant uncertainty regarding whether he would have exercised the option, given the deteriorating relationship between the parties, unresolved terms of the contemplated agreement, and the appellant's own cautious approach. The Court distinguished between entitlement to damages for breach of an...

Citation
[1984] ZASCA 53
Parties
Appellant: Barry George Sommer; Respondent: John Wilding
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 May 1984
Case Number
258/82
Procedural Posture
Civil Appeal / Appeal From Durban and Coast Local Division
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Rabie, Jansen, Trengove, Viljoen, Hefer
Legal Topics
Option Contracts, Repudiation, Damages for Breach, Causation in Contract, Onus of Proof
Commercial and Corporate Option Contracts Repudiation Damages for Breach Causation in Contract Onus of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Barry George Sommer

Appellant

John Wilding

Respondent

Procedural Posture

Civil Appeal / Appeal From Durban and Coast Local Division

Legal Issues

  1. 1 Whether the appellant was required to prove that he would probably have exercised the option to purchase shares in Trumatic.
  2. 2 Whether the appellant suffered damages as a result of the respondent's repudiation of the option agreement.
  3. 3 What is the correct measure of damages in the event of breach of an option contract.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant, as the grantee of an option to purchase shares, was required to prove on a balance of probabilities that he would have exercised the option during its currency in order to establish a causal link between the respondent's breach and the damages claimed. The Court found that the appellant failed to discharge this onus, as the evidence indicated significant uncertainty regarding whether he would have exercised the option, given the deteriorating relationship between the parties, unresolved terms of the contemplated agreement, and the appellant's own cautious approach. The Court distinguished between entitlement to damages for breach of an...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the respondent's costs, including the costs consequent upon the employment of two counsel.