Whyte v Couto (1) (388/82) [1985] ZASCA 81 (13 September 1985)

Whyte v Couto (1) (388/82) [1985] ZASCA 81 (13 September 1985)

Clause 4(b) of the contract required the conclusion of a binding lease between the respondent and the lessor, with terms acceptable to the respondent. The clause was inserted for the respondent's benefit to safeguard her investment. The court found that the clause constituted a mixed potestative condition, not a pure one, and thus did not render the contract void for vagueness. However, as no binding lease was ever entered into, the suspensive condition was not fulfilled. The appellant failed to prove that the respondent acted with dolus to prevent fulfilment, as her refusal to sign the lease was plausibly due to unacceptable terms and other circumstances, not a direct intention to...

Citation
[1985] ZASCA 81
Parties
Appellant: Percival Whyte; Respondent: Fernanda Spares da Costa Couto
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
13 September 1985
Case Number
388/82
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court and Transvaal Provincial Division
Outcome
Appeal dismissed with costs, including costs for two counsel.
Judges
Jansen, Joubert, Trengove, Howard, Grosskopf
Legal Topics
Sale of Business, Suspensive Conditions, Contractual Vagueness, Potestative Conditions, Fictional Fulfilment
Commercial and Corporate Civil Procedure Sale of Business Suspensive Conditions Contractual Vagueness Potestative Conditions Fictional Fulfilment

Case Brief

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Parties

Percival Whyte

Appellant

Fernanda Spares da Costa Couto

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court and Transvaal Provincial Division

Legal Issues

  1. 1 Whether clause 4(b) of the sale agreement is so vague as to be unenforceable.
  2. 2 Whether the suspensive condition in clause 4(b) was fulfilled or fictionally fulfilled.
  3. 3 Whether the respondent acted with dolus to prevent fulfilment of the suspensive condition.

Ratio Decidendi

Clause 4(b) of the contract required the conclusion of a binding lease between the respondent and the lessor, with terms acceptable to the respondent. The clause was inserted for the respondent's benefit to safeguard her investment. The court found that the clause constituted a mixed potestative condition, not a pure one, and thus did not render the contract void for vagueness. However, as no binding lease was ever entered into, the suspensive condition was not fulfilled. The appellant failed to prove that the respondent acted with dolus to prevent fulfilment, as her refusal to sign the lease was plausibly due to unacceptable terms and other circumstances, not a direct intention to...

Court Disposition

Appeal dismissed with costs, including costs for two counsel.

Orders

  • Plaintiff's claim dismissed.
  • Appellant to pay costs, including costs attendant upon the employment of two counsel.