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31 Cards in this Set
- Front
- Back
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Requirements for a valid contract |
Contractual capacity Agreement Formalities Certainty Possibility of performance Legality |
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Who has contractual capacity? |
Natural persons and juristic persons |
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What is contractual capacity? |
The legal ability tp enter into a contract |
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For whom does contractual capacity differ? |
Minors Married people People who are drunk at time they contract Insolvent people |
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When does a minor become a major before turning 18? |
When married or when emancipated |
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Which two points support tacit emancipation? |
The guardian already grants the minor independence The minor does not live with their guardians |
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Contractual capacity of child under 7 |
No contractual capacity Guardian acts on child's behalf |
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Contractual capacity of minor between 7 and 18 |
Limited contractual capacity Must be assisted by guardian |
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What is ratification of a contract? |
When a contract is consented after it is concluded, either by the minor upon becoming a major, or by the minor's guardian. |
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What are the two types of ratification? |
Expressly (in writing) Tacitly (deduced from conduct) |
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What is restitutio in integrum? |
When a guardian enter a minor into a contract that is prejudicial or burdensome to the minor, the court can set the contract aside. |
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How can a minor apply for restitutio in integrum? |
-upon becoming a major -with assistance from guardian -with assistance of court-appointed representative (curator ad litem) |
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What must the contracting parties do once a court grants restitution? |
Each party must give back what they received under the contract - their positions must be restored to what they would have been if the contract had not been concluded. |
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What is a limping contract? Give an example. |
A contract that can only be enforced against one of the two parties (eg contract with unassisted minor) |
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Is an unassisted contract of a minor void? |
No, but it is voidable |
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When does an unassisted contract become void? |
When the minor's guardian or the minor, upon reaching majority, REPUDIATES the contract. |
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What are the two types of restitution made after an unassisted contract is repudiated? |
rei vindicato - return of goods unjustified enrichment - return of money |
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Give an example of a case where unjustified enrichment is in action. |
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When can the other party in an unassisted contract seek remedy? |
Unjustified enrichment or rei vindicato Minor pretended to be major Tacit emancipation |
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Is the minor liable to return everything received in terms of unjustified enrichment and rei vindicato? |
No, only what the minor has LEFT |
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When a minor pretends to be a major, in what terms are they liable? |
They are liable in terms of the law of delict, not the law of contract |
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When does the Consumer Protection Act make the supply of goods or services voidable? |
The consumer was an unemancipated minor. The agreement was made without the consent of the adult responsible for the minor. The agreement was not ratified by the adult responsible for the minor or the minor upon reaching majority. |
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Types of consent needed in community of property and example of when needed |
Written consent of spouse plus two witnesses -sale of immovable property, surety, credit agreements Written consent of other spouse -sale of valuable assets (shares etc) Express or implied consentual capacity -donations, sale of furniture |
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Formalities regarding marriage out of community of property |
Parties sign antenuptial contract before a notary public. Registered at Deeds Office within 3 months. |
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Types of marriage out of community of property |
Without accrual With accrual |
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Without accrual |
Separate estates before, during and after marriage |
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With accrual |
At end of marriage, assets gained during marriage are shared according to a percentage agreed upon by partners. |
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Contractual capacity regarding drunken persons |
Contract is void if person is so drunk that they are unaware that they are entering a contract or do not fully understand terms of contract |
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Insolvency |
A person's liabilities exceed their assets |
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Sequestration |
Control of a person's estate is given to a trustee who pays their debts. |
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Where does an insolvent person have limited contractual capacity? |
1) contracts to dispose of any assets that form part of the insolvent estate 2) contracts that negatively affect the insolvent estate 3) acting as a general dealer or manufacturer |
