1. Unit 9 Legality

2.  Illegal contracts create no obligations.  Legality: Determined by the interests/convictions of society.  Public interest and Constitution once again play a role.  “Illegality”: conflict with statutory law or common law.

3.  Contra bonos mores.  Law does not enforce morals merely because they are morals.  Morals must however be considered: Justice.  Agreements which are considered contrary to public interest and policy:

4.  Agreements to the detriment of the state;  Agreements which obstruct/defeat the administration of justice;  Agreements which restrict someone’s freedom to act or to be economically active.

5.  FOUND IN STATUTE AND THE COMMON LAW.  SEE LIST OF STATUTES THAT PROHIBIT CERTAIN AGREEMENTS.

6.  Attempts to oust/undermine the jurisdiction of the court.  Agreements with enemy subjects.  Pacta de quota litis.  Pacta commissoria.  Pacta successoria.  Certain marriage brokering agreements for reward.

7.  Delictum – illegality.  Sometimes, both parties have committed wrongful/illegal acts.  A comparison of debts can then be made.  Rule can only apply if party that claims reimbursement had acted immorally.

8.  Klokow v Sullivan:  The par- delictum rule curtails the right to avoid the consequences of his performance or past performance of an illegal act.  It is concerned with the moral guilt of the parties, not their criminal liability.

9.  Jajbay v Cassim: “Clean hands”- doctrine from English law.  Abovementioned doctrine: Similar to par delictum of Roman law.  In the above case it was argued that the rule should be relaxed where it is necessary to prevent injustice or to promote public policy.  Court found, however, that there was no need for the plaintiff to plead relaxation of the rule on the grounds of public policy.

12.  See especially discussion of Coetzee v Comitis on p. 87-88.  Troskie v Van der Walt.  Golden Lions v Venter.  Santos v Igesund.

14. Agreement in question must bring about certainty regarding its legal consequences. Certainty for parties and third parties. Failure to do so: nullity of agreement. Past: Courts have been unwilling and incapable of relieving the parties of the burden of determining the consequences of their transactions.

15. Key question: Whether the agreement is defined in such a way as to render the obligation capable of being enforced by the courts. Test: Objective. Surrounding circumstances may play a role. Agreement may be void for vagueness despite parties’ belief that a contract has been concluded.

16.  Sometimes: Impractical/undesirable from a business point of view to spell out the consequences of a contract completely.  It may be kept open for future referral.  It must, however, still be objectively ascetainable.

17.  Proper writing skills and grammar use are required.  Especially to determine performance and counter-performance.

18.  Uncertainty regarding essential aspects: No obligation created.  Also agreements of which material aspects are uncertain.  Argument has been put that a contractual term intended for the exclusive benefit of the parties may be circumvented by a waiver by relevant party.

19.  Abovementioned argument has been rejected.  Performance in terms of a contract that is void for vagueness can still be recovered: Enrichment action.