Venter Agentskappe (Edms) Bpk. v Sousa (467/88) [1990] ZASCA 37; 1990 (3) SA 103 (AD); (29 March 1990)

Venter Agentskappe (Edms) Bpk. v Sousa (467/88) [1990] ZASCA 37; 1990 (3) SA 103 (AD); (29 March 1990)

The Supreme Court of Appeal held that clause 9 of the sale agreement did not create a condition precedent to the agent's entitlement to commission, but merely fixed the time for payment. The agent's right to commission accrued upon performance of its mandate, i.e., introducing a willing and able purchaser and facilitating the conclusion of a binding sale agreement. The subsequent cancellation of the contract rendered the stipulated time for payment impossible, making the commission immediately due. The agent was not required to plead fictional fulfilment, as the clause was a time stipulation, not a condition. The evidence established that the purchaser was financially able and willing at...

Citation
[1990] ZASCA 37
Parties
Appellant: Venter Agentskappe (Edms) Beperk; Respondent: Antonio da Conceicao Sousa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 March 1990
Case Number
467/88
Procedural Posture
Civil Appeal / Appeal From Absolution From the Instance Granted by the Trial Court After Closure of Plaintiff's Case.
Outcome
Appeal upheld; absolution from the instance set aside; application for absolution dismissed with costs.
Judges
Friedman, Joubert, E.M. Grosskopf, Smalberger, Goldstone
Legal Topics
Estate Agent Commission, Contractual Terms Vs Conditions, Absolution From the Instance, Interpretation of Contracts
Commercial and Corporate Civil Procedure Estate Agent Commission Contractual Terms Vs Conditions Absolution From the Instance Interpretation of Contracts

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Venter Agentskappe (Edms) Beperk

Appellant

Antonio da Conceicao Sousa

Respondent

Procedural Posture

Civil Appeal / Appeal From Absolution From the Instance Granted by the Trial Court After Closure of Plaintiff's Case.

Legal Issues

  1. 1 Whether the agent was entitled to commission despite cancellation of the sale agreement before transfer.
  2. 2 Whether clause 9 of the sale agreement created a condition or merely fixed the time for payment of commission.
  3. 3 Whether the agent's claim was defeated by the absence of fictional fulfilment allegations in the pleadings.

Ratio Decidendi

The Supreme Court of Appeal held that clause 9 of the sale agreement did not create a condition precedent to the agent's entitlement to commission, but merely fixed the time for payment. The agent's right to commission accrued upon performance of its mandate, i.e., introducing a willing and able purchaser and facilitating the conclusion of a binding sale agreement. The subsequent cancellation of the contract rendered the stipulated time for payment impossible, making the commission immediately due. The agent was not required to plead fictional fulfilment, as the clause was a time stipulation, not a condition. The evidence established that the purchaser was financially able and willing at...

Court Disposition

Appeal upheld; absolution from the instance set aside; application for absolution dismissed with costs.

Orders

  • The application for absolution from the instance is dismissed with costs.
  • The order of the court a quo is set aside and replaced with the above.