 Explain the nature of prevention of performance, with specific reference to the distinction between absolute and relative prevention of performance.  List and discuss the requirements for prevention of performance.  Distinguish between prevention of performance and other forms of breach of contract generally.  Discuss the specific consequences of prevention of performance.  Discuss cancellation on the grounds of prevention of performance.

 Van der Merwe et al Chapter 10 pp  CASE:  Administrator, Natal v Edouard 1990 (3) SA 581 (A).

 Conduct after conclusion of the contract by which the debtor makes it impossible for himself to perform.  Conduct: positive act or neglect to perform.  Impossibility may be total or partial.  Physically impossible, but also for all reasonable and practical purposes impossible.

 Medical doctor undertook to sterilise a patient immediately after the birth of her third child.  Doctor failed to perform sterilisation, with the result that the woman became pregnant again.  Doctor’s failure amounted to prevention of performance in terms of his failure to (successfully) sterilise the patient.

 Can occur before, on or after date set for performance.  Performance can be absolutely (objectively) or relatively (subjectively) impossible.  Absolute prevention predicts malperformance with absolute certainty.  Relative prevention anticipates malperformance only with reasonable certainty.

 Breach of contract in the form of prevention of performance is complete as soon as performance has been prevented.

 Can only constitute breach if conduct infringes a contractual obligation and is therefore wrongful.  Vis maior, casus fortuitous: extinguishes the obligation.  Above: no breach, element of wrongfulness is excluded.  Fault is a requirement of prevention of performance.

 Mora: performance is still possible, however late.  Positive malperformance: Performance has been rendered, but is defective. Prevention takes place before performance.  Repudiation: predicts eventual malperformance with relative certainty, while prevention predicts malperformance with absolute certainty.

 No order for specific performance can be granted.  If performance has become only partially impossible, a creditor can claim specific performance of possible part.  The debtor remains bound despite impossibility of performance.  Creditor may choose to uphold the contract or resile.

 Learning outcomes:  Shortly discuss the nature of mora creditoris.  List and shortly discuss the requirements for mora creditoris.  Distinguish between mora creditoris and other forms of breach of contract in general.  Critically evaluate and discuss the special consequences of mora creditoris.

 Van der Merwe et al Chapter 10, p  CASES:  Pienaar v Boland Bank  LTA Construction v Minister of Public Works and Land Affairs.

 CREDITOR wrongfully fails to render his co- operation to enable the debtor to perform.  Can occur before performance by the debtor.

 LTA Construction v Minister of Public Works & Land Affairs:  1. Performance must have been capable of being fulfilled.  2. Debtor must have made proper performance or at least have tendered performance.  3. Creditor must have failed to accept performance tendered or refused to co-operate with it being made.

 4. The creditor or his employees must cause the delay.  5. The creditor must be at fault (element of fault- intent or negligence).  Remember: Mora creditoris isn’t the only form of breach able of being committed by creditor. See examples on pp of study guide.

 Appellant borrowed an amount of money from the first respondent.  When debt had to be paid back, a third party paid the debt on behalf of the appellant.  Boland Bank as creditor refused to accept payment, since it was not made by the debtor himself.

 Court decided that if a third party performed on behalf of the debtor, it is seen as if the debtor him-or herself performed.  This would even be the case where performance was made by a third party against the wishes of the debtor.

 Exceptio non adimpleti contractus.  BK Tooling v Scope Precision Engineering.

 Obligations are reciprocal: Created “one in exchange for the other”.  Reciprocal contract: performance by a plaintiff is a REQUIREMENT for the enforceability of his claim for counter-performance.  Party to reciprocal contract may withhold performance in order to secure counter- performance.  The right to withhold performance: Exceptio non adimpleti contractus.

 It is an extraordinary remedy, not an action with which to commence litigation, but merely a “claim in replication”.

 FACTS:  At the end of 1973 the appellant received a drawing for the implementation of a rubber fitting tot the engines of certain Ford vehicles.  A company called Paulstra would manufacture such fittings and deliver same to Ford.

 In order to manufacture these fittings, Paulstra needed metal moulds.  The drawing received by the appellant from Paulstra provided complete measures, and allowed a tolerance of 0,5 mm.  It was to be symmetrical, consisting of two identical halves that would fit on top of another.

 Appellant made the necessary drawings and at the end of 1973 requested the respondent to finalise the metal moulds to create a prototype.  Prototype was presented to Paulstra, who found it acceptable.  Paulstra then placed an order for 16 moulds at R5000 each.

 The appellant only received the products on the 19 th of June  Appellant had not yet paid the respondent for the first order of moulds, and the respondent was unwilling to manufacture a second order.  Respondent also went overseas and only returned on the 20 th of July By that time, the appellant was already under huge pressure from Paulstra to deliver the order.

 On the 25 th of August 1974 Paulstra tested the moulds. They did not comply with the agreed specifications.  On the 16 th of August the respondent contacted the appellant for payment of the first order. The appellant refused to pay as the work was unsatisfactorily done.

 The respondent requested that the moulds be given back for rectification, but the appellant refused.

 The appellant based his claim on the exceptio in denying that the plaintiff had “duly performed its obligations”.  Jansen JA mentioned a few “aspects” of the principle of reciprocity and its application by means of the exceptio.

 Continued in next lecture…