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Misrepresentation
Representation which is not made bona fide, true, honest, etc. Statement made by one party
of the contract (presenter) to the other party (presentee) which is not ----- in term of contract
yet is one of the reasons that includes the presentee into the contract.

Three Categories:
Fraudulent – presentation involves elements of fraud (latent defect).
Negligent – presentation involves elements of negligence (reckless).
Innocent – presentation involves elements of innocence.

Latent defect – what you cannot see

Patent defect – what you can easily see

Effects and Elements:

1. Statement or fact must be false
2. Statement or fact must be wrongful/unlawful
3. Misrepresentation must be made to the other party of contract

Effects of fraudulent presentation:

If the aggrieved party can proof these elements then there is no “consensus ad idem”
 no contract.

Remedies of Fraudulent Misrepresentation:

1. Abide by the contract and seek damages (any wasted costs)
2. Cancellation/Rescission of the contract

*One cannot seek both remedies at once

Contractual Damages Delictual Damages

Contract Delict
Positive approach Negative approach
Position you are in if contract is performed Position you are in prior to the performance

Phame (Pty) Ltd v Praize

Whether or not a person can seek remedies on the grounds of innocent misrepresentation?
Aedilitian Remedies (all contract of sale). Roman law

The merx one is selling has a “latent defect”

One can apply Aedilitian Remedies: 1. Actio Redhibiyorian
2. Actio quanti minoris

Buyer must firstly cancel the contract and then apply restitution in integram (put both parties
in the position in which they both were in before the sale). Secondly, one should give the real
value of the merx. Abatement of the purchase price.
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Duress & Undue Influence

Elements of Duress:
(1) Actual violence or reasonable fear.
(2) The fear must be caused by the threat of some considerable evil to the party or his
family.
(3) It must be the threat of an imminent or inevitable evil.
(4) The threat or intimidation must be contra bonos mores.
(5) The moral pressure used must have caused damages.

The reasonableness of the fear

The test for reasonable fear is one of objectiveness. Therefore, it can be said that the fear
must be sufficient to affect the mind of a person of ordinary firmness.

The object of the threat

The party himself and his family can be threatened. It is also accepted that both property
(goods) and economic duress are valid. In recent years, English law has come to recognize
“economic duress”. The first principles are (a) that a contract induced by threat sufficient to
overcome the resistance of a person of ordinary firmness should not be allowed to stand, and
(b) that no one should be permitted to profit from his own wrong.

The difference between duress of a person and duress of goods is that the latter requires
protest. One should protest before consenting.
Vis Absoluta  no need for protest (eg: when someone holds gun to your head).
Vis Compulsa  need for protest (eg: when there is room for protesting)

The imminence of the threat

A narrow question is asked: whether a person of ordinary firmness would have resisted the
threat? Meaning whether, assuming the threat was sufficiently serious to affect the mind of
such a person, he could not have averted it by some method other than agreeing to the
contract. How much time was available to him to choose his method of averting the threat?

The threat must be unlawful or contra bonos mores

Contra bonos mores  against good morals.

 Arend v Astra Furnishers 1974 1 SA 298

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CASE (Elements above set out in this case)

 Hedricks v Barnett 1975 1 SA 765

Undue Influence
In English law undue influence can be regarded as the relationship between lawyer & client,
doctor & patient, mother & daughter

According to Roman-Dutch law, there is no presumption, but it was later accepted in RDL.

Elements:
(1) The one party must have exercised influence over the other party
(2) The influence must have weakened his power of resistance and made his will pliable.
(3) Without that influence, the other party would not have entered into the contract.

CASE Preller v Jordaan 1956 (1) SA 483 

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Illegality (Unlawfulness)
Legality of contract: whether a contract is enforceable.

Statutory Illegality – whether the contract is against the statute.

Legality/illegality under the common law.

Statutory Illegality
a. Void, unenforceable and the crime is committed
Eg: racial crime – people enter into a contract to fix the other race (black/white).

b. Void, (contract against the statute) but no crime is committed

Eg: selling a commercial farm to a private individual instead of offering it to the
governments for consideration first.

c. Where a crime is committed but the contract is enforceable

Eg: when a business is opened in an area zoned for residential use only, the business
will be operating illegally, yet the contracts that the business has made with his
customers is still valid.
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Legality/illegality under Common Law
If a person enters into a contract against the provisions:

1. Ex turpi causa – contract will be void and unenforceable.

2. Par delictum post es condition possidentis/defendenis
If parties are at equal guilt, the possessor/ defendant is at a stronger position

CASE  Jajbhay v Cassim 1939 AD 537

“Ex turpi causa non oritur actio”  [Latin] No action can be based on a disreputable cause:
the principle that the court may refuse to enforce a claim arising out of the claimant’s own
illegal or immoral conduct or transaction. Hence parties who have knowingly entered into an
*illegal contract may not be able to enforce it and a person injured by a fellow-criminal while
they are jointly committing the crime may not be able to sue for damages for the injury.
(Party seeking enforcement)

A contract is illegal when it goes against the statutory law and Common law.
- Statue law
- public policy (Contra bonos mores)

Par delictum (can be bent)

- If two parties have performed the contract, they are equally guilty.
- Court will not be able to recover your loss; it is an illegal contract. The loss remains
where it falls.
- But it is not an absolute rule; it can be banned in the interest of natural justice, in
order to avoid unjust enrichment. It is flexible.
- (party seeking release from its operation)

Restraint is an agreement by which someone is restricted in his freedom to carry on his trade,
his profession, his business or other economic activity.

RDL approach: (Book v Davidson)

(1) A contract in restraint is valid and therefore enforceable by Courts, just like any other
term of contract.
(2) However, if that contract is against public policy, it will not be enforced.
(3) The onus is one the party to prove the enforceability of the contract.
(4) If it is proven that the contract is unreasonable and against public policy, the court
will not enforce the contract.
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(5) When a court is faced with restraint of trade, to decide whether a contract is against
public policy or not, it has to look at the circumstances prevailing at the time of the
hearing, not the time that the contract was concluded.
(6) Courts have the power to enforce parts of the contract which are not against public
policy  part of contract which is reasonable.

CASE  Magna Alloys v Ellis

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Distinction between Condition and Term

The terms of a contract are the promises agreed upon by the parties which together make up
the contract. A condition is a major term of a contract. It is frequently described as a term that
goes to the roots of the contract or is of the essence of the contract. Condition of a contract is
also knows as a provision

Conditions affect the nature (existence) of an obligation; it determines whether or not there is
a contract, therefore whether or not there is a liability. A term of contract does not relate to
the existence of a contract or the obligation, but rather it regulates or modifies the obligations
to the parties of a concluded contract.
A contract is either fulfilled or not, according to a proscribed event that does or does not take
place. A contract must be “future” and “uncertain”. If a contract is fulfilled it has an
automatic effect: either creating or canceling a contractual obligation.

Implied terms: a provision of a contract not agreed by the parties in words but either
regarded by the courts as necessary to give effect to their presumed intentions or introduced
into the contract by statutes (as in the case of contract of sale). An implied term may
constitute either a condition of the contract or warranty; if it is introduced by statute it often
cannot be expressly excluded.

Tacit/Express terms: a provision of a contract, agreed to by the parties, that is either written
or spoken. Such a provision may be classified as a *condition, a *warranty, or an innominate
term.

 Alfred McAlpine & Son v TPA 1974 3 506

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Conditions of a contract
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Conditions:
Positive (affirmative) and Negative conditions
Casual and Potestative conditions
Suspensive (precedent) & Resolutive (subsequent) conditions – NB!!!

Suspensive – contract is only valid when the 3rd party approves.

Eg: A – B, if FNB approves of loan to B, a contract will come into existence. The contract
will be suspended until the conditions are fulfilled.

- If B applies for financing from FNB, yet does not want to buy the house from A,
fictional fulfillment occurs. B uses the finance from FNB for something else, he is
undermining the conditions of the contract. The Court will assume that the contract is
already binding.

Suspensive conditions, which suspends the obligation until the conditions are fulfilled. Until
the happening of the event contemplated, there is no obligation until the happening of the
even in the future = no creditor, no debtor
There is no obligation, only “Spes” [Latin]  Legitimate expectation (hope).

Resolutive – contract is already in existence, but will lapse if the date has passed. There are
only two parties and the contract will be discharged if the party fails to perform at the set
date. “Resolutive time clause” – affects the validity of the contract.

Suspensive Conditions Resolutive Conditions

No contract Existent contract
Contract suspended Obligation to perform
Involves 3rd party Only 2 parties involved

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*Time Clause – a certain set date given to the parties to a contract to perform a term of
contract, which qualifies an obligation with reference to a certain moment in the future.
* Provisions in contract that relate to the time within which acts are to be performed. The
question often arises whether or not a time provision constitutes a condition of the contract. If
it does, it is said that time is of the essence.

CASE: Bernitz v Euvrard 1943 AD 595

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*Fictional Fulfillment:
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When a party to a contract in bridge of his duty prevents the fulfillment of the conditions
until the happening if which one will become bound in obligation, and does so with intention
of frustrating it, the unfulfilled conditions will be considered to have been fulfilled against
him. The doctrine of fictional fulfillment protects this spes/legitimate expectation by
applying the equitable rule that a party cannot take advantage of his own default to the loss or
injury of another.

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Warranties

A warranty is a term or promise in a contract, breach of which will entitle the innocent party
to damages but not to treat the contract as discharged.

Warranties – if there is a breach, you will have to make up for it (fix it).
-- In case of problem occurring, you will repair it.

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Exemption

A term in a contract purporting to exclude or restrict the liability for breach of obligation of
one of the parties in specified circumstances. If such a clause is ambiguous, the court will
interpret it narrowly rather than widely. If an exclusion or restriction is not recited in a formal
contract but is specified or referred to in an informal document, such as a ticket or a notice
display in a hotel, it will not even be treated as a term of the contract unless reasonable steps
were taken to bring it to the notice of the person affected at the time of contracting.

Exemptions – can be given by parties or emanate from law

- running away from obligation (eg: parking at own risk)

Exemption Clauses
- Mostly used by parties in stronger bargaining positions.
- Can be put in contract by either of the parties.

It is first necessary to establish an existence of the exemption clause, and a customer who has
suffered injury or loss from the supplier’s wrongful act may elect whether to sue in contract
or delict. If he sues in contract, the onus of proving there is no exemption clause is on him,
but if he sues in delict the onus of proving the clause will be on the supplier.

Interpretation of the Exemption Clause

1. Our courts  if there is no consensus between both parties, the Court will strike
contract down.
2. If there is consensus, exemption clause will be avoided when one of the parties to a
contract has abused the other party’s circumstances to such an extent that consensus
can be said to be obtained in an improper manner.
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3. If an exemption clause is framed (written) so widely then the court will assume that
there is an obligation to perform on the part who framed the exemption clause.
4. An Exemption Clause may also be struck down if it opposes public policy.

CASE:  Wells v South Africa Alumenite Company 1927 AD 69

 Stocks & Stocks v T J Daly & Sons 1979 3 SA 754

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Ticket cases ~ Notice/Display

There is a fold test:
(1) Whether or not the person receiving the ticket knew that there were writings/printings on
the ticket.
(2) Whether the person receiving the ticket knew the writings/printings form part of the
contract as binding.

If the answer is “yes” to the 2 questions, then the writings/printings will form part of the
contract and will be binding. If the answer is “No”, then one proceeds to the next question.

(3) Did the party issuing the ticket take necessary steps to bring the terms/references relating
to the terms of contract to the notice of the other party?

“Mutatis Mutandis”  same applies with necessary change

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Stipulatio Alteri
Stipulatio alteri means a contract in favor of a third party (benefit of the third party).

C is not a party between discussion of A and B. A is no longer in the party once contract is
concluded. The contract will exist between B and C.
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Difference between agent (representation) and stipulatio alteri:

A – Agent B – Principal C – 3rd Party

A acts on behalf of B

If the sale is concluded, there is a contract between B and C, because A acts on behalf of B.

Duties/obligations of an agent:
- They act in good faith and in the interest of the “principal”.
- If the agent does not act in good faith, then the principal is capable of suing him.

Authority – expressed or implied, authority to represent a person or company. Authority can

be written on a piece of paper. (Expressed authority).

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Termination/Discharge of Contract
1. Performance

Contract comes to an end when:

- Performed: both parties bound by obligation
- Who to perform?
- What to perform?
- How to perform?
- When to perform?

Debtor and Creditor

A letter of demand or Summon (issued from the Court) is sent to the debtor.
If creditor sends debtor a Summon, and debtor fails to perform, the debtor is said to be in
“Mora”, to place the debtor in mora.

Mora ex re
When the contract fixes the time for performance, mora is said to arise from the contract
itself and no demand is necessary to place the debtor in mora. The principles of law which
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applies when a debtor undertakes to discharge an obligation on a specific date, the creditor
need not make demand. Therefore a debtor is in mora if he fails to pay on the appointed day.

Mora ex persona
The general rule of law is that of obligation for performance of which no definite time is
specified are enforceable forthwith  without delay, but the rule is subject to the
qualification that performance cannot be demanded unreasonably so as to defeat the object of
the contract or to allow an insufficient time for compliance.

Who is to perform?
Debtors(s) – more than one part  joint debtors
Each debtor will perform pro rata (his portion) obligation.

Joint and Several

- Husband and wife, if one fails to pay a loan, the creditor can sue either one of the
spouse to pay.
- Company with many debtors who are jointly and severally liable. If one debtor pays
the loan back, the rest of the debtors will be discharged of all liabilities.

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2. Set Off (Compensatio)

A set-off is an extinction of debts (reciprocally or to each other) by two persons. If the debts
are equal, both debts are discharged. If they are unequal, the smaller is discharged, the larger
remaining in force for the balance or excess only.
Set-off is equivalent to payment and it consequently operates ipso facto & ipso jure or
automatically as it partially or totally discharges the debts in question.

A monetary cross-claim that is also a defence to the claim made in the action by the claimant.
The deduction of monies owed against sums due to be paid. Many commercial contracts
contain express terms prohibiting set-offs.

Set-off has 4 requirements:

1. Both debts must be of the same nature (both in $$$ or property, etc)
2. Both debts must be liquidated (capable of being put in a monitory value)
3. Both debts must be fully due.
4. Both debts must be payable by and to the same person in the same capacity.

3. Merger (Confusio)
A merger is the concurrence in the same person of the capacity of a creditor and debtor in
respect of the same obligation. The consequence of merging is that the debt of ipso facto
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discharges. Eg: when a lessee becomes the owner of the leased property, the lease is at an
end.

4. Novation
Novation comes from the word “novus” which means new.
 A new contract replacing the old one.

1. Novatio proper
2. Delegation
3. Assignment
4. Compromise
5. Cession

Novation means a new contract which extinguishes the original obligation between the
parties and replaces it with a new/fresh obligation. There are 3 types of Novation, namely:
Novation proper, Delegation and Assignment.

Novation Proper
A new contract between original parties to an existing contract which extinguishes the
original obligation and substitutes a fresh one in its place.

A novation depends on a justa cause, meaning good ground, and if the original contract is
invalid, it follows that the novation is equally invalid.

The effect of novation proper is to discharge not only the original obligation but also all
accessory to it. A new obligation must be created which contains some elements not found in
the earlier contract.
Eg: where a money debt is changed into an obligation to transfer a property.

(A novatio can be voluntary or compulsory.)

5. Compromise
Compromise is a form of novation. It is an agreement between the parties to an obligation,
the terms of which are dispute or between the parties to a law suit. The issue of which is
uncertain, settling the matter in dispute, each party moving back (receding) or forth from his
previous position and conceding something, either dismissing his claim or increasing his
liability  negotiating between the parties.

6. Delegation
A new contact whereby the original debtor provides a 3rd party who is accepted by the
creditor in his place as a new “debtor”.
As soon as the new contract is concluded, the creditor no longer has any rights against the
original debtor (the original debtor is discharged).
For a delegation to be effective, the consent of the creditor is necessary~!
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7. Assignment
The making over of both rights and obligations of the parties to a contract to a 3 rd person
called an “assignee”. The result is that the assignee steps into the shoes of the assigner. The
original contract is terminated as a result of the assignment. The main requirement of an
assignment is self evident, namely the consent of 3 parties: original 2 parties and the consent
by the new party (assignee).

Cession

When A transfers his personal rights to C, B will have to pay C.

Cession is used to signify the transfer personal rights following from a contract. The creditor
making the cession is called the “cedent” and the person to whom the cession is make is
called the “cessionary”. Generally, a contractual right may be ceded by the creditor to a 3 rd
party without the consent of the debtor.

Exception Rules:
1. where the obligation is of a personal nature, the debtor must be advised (notified)
eg: contract rendering services (employment) the debtor cannot be obliged to render
them (services) to someone other than the creditor himself.
2. Where there has been an expressed agreement that the creditor shall not transfer his
rights.
3. Where a portion of the debt is only ceded to a 3rd party.

Formation of Cession:
Cession is affected by an agreement between the cedent and the cessionary that the
contractual rights are transferred/ceded by the former to the latter. If consent of debtor is not
necessary, then the notice to him is not required in order to vest the rights into the cessionary.
The cessionary should always give a notice to the debtor because if the latter (debtor) in
ignorance of the cession, he pays the cedent, the debtor is discharged.
C cannot sue B, it is C’s duty/responsibility to inform B of the cession.
If on the other hand, the debtor with the notice of the cession still pays the original creditor,
he remains liable to the cessionary.

8. Supervening Impossibility (Vis Major / Casus Fortuitus)

 Acts of God.
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This should not be caused by the debtor, the causes should be beyond your control.
Where performance of the obligation of the debtor becomes impossible (physically or
legally) after the contract has been made, the debtor is discharged from liability if he is
prevented from performing his obligation from vis major / casus fortuitus (unforeseen
accident). Exemption of this is the contract of Sale – Passing of Risk as soon as contract is
concluded. Eg: you buy a car, and sign the contract of sale, on the way of the car being
transported to you house, an accident occurs. You will not be able to get a new car, the
company will not be liable to the damages nor will they pay.

9. Release
Release is a discharge or a quittance of an obligation either gratuitously or value. A release
can be made expressly or tacitly. One of the promises by the creditor not to sue the debtor.
(Pactum de non petendo).

The release by a creditor of one of the two co-debtors discharges the other co-debtor. A
mutual release of each other by both parties to a contract constitutes a rescission of that
contract.

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Breach of Contract
- failure to perform
- negative performance (mora ex re)
- material breach (affects whole contract)
- Repudiation/Anticipatory breach
- Preventive performance
- Positive mal performance

Forfeiture Clause also known as the cancellation clause.

If a person does not meet the requirement/fail to perform the requirements, the contract will
be cancelled. Lex Commissoria – contract may contain a forfeiture clause or lex
commissoria, empowering the creditor to cancel the contact if the debtor fails to perform by
the time fixed for performance. Whether a specific breach has been committed is just a
matter of interpretation of contract.

North Vaal Mineral Co v Lovasz 1961 (3) SA 606

The investigation whether the right to cancel came into existence is purely. Investigation
whether the condition emerging from the language of the contract has in fact been fulfilled.

Material Breach
It is universally accepted that a sufficiently serious breach will justify cancellation without
the necessity of proving the intention to repudiate. According to the well-known principles
the decision of a contract is only permissible when/ if a breach occurred of a term which goes
to the roots of the contract.
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A minor breach of an essential term will not always justify cancellation. If a contract contains
an expressed forfeiture clause permitting the cancellation for a specific breach, the court will
not investigate the materiality or otherwise of the breach.

CASE:
Oatarian Property (Ltd) v Maroum 1973 (3) SA 779
Singh v McCarthy Retail Ltd 2000 (4) SA 795

Repudiation/Anticipatory Breach
 Definition
 Test
 Consequences

The test is to look at the act and intention of the parties.

A repudiation refers to any conduct of a party to a contract from which a reasonable person in
the position of the innocent contractant that, the first contractant (party) does not intend to
comply with his duties, for instance: where a contractant denies the validity of a contract.

In the case of Tuckers Land, it was held that what takes place in a case of anticipatory breach
is the breach of an ex lege obligation derived from the requirement of good faith (bona fides)
which forms part of every contract and which prohibits anticipatory breach. Repudiation
need not take place in so many words, any conduct which indicates with reasonable certainty
that a performance which is owing will not be rendered when it becomes due is sufficient.
Eg: to deny the existence of the contract
To dispute the terms of the contract
To attempt to cancel the contract without good grounds.

TEST: whether it can be reasonably inferred from the repudiators conduct that mal
performance takes place in the future.

CASE:
Data Color International (Pty) Ltd v Intermarket 2001 (2) SA 284

Breach of Contract by the Creditor

Breach of contract can be committed not only by debtors, but also by creditors who act in a
wrongful way. This may arise where there is a duty on the creditor to co-operate towards the
discharge of the obligation by the debtor, and the creditor does not comply with its duty. In
such a case, the debtor is bound to deliver a thing to the creditor, he needs the co-operation. A
creditor is also under a duty not to interfere with the execution of the debtor’s duties.

Mora Creditoris applies to mora debitoris mutatis mutandis.

Mora creditoris relates to the time of compliance with the creditor’s duty to co-operate. It
occurs where the creditor wrongfully fails to render his co-operation as has been fixed by the
contract to enable the debtor to perform. Where a creditor is expected to perform/co-operate
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with the debtor. Before performance is tendered (given) and the time for his co-operation has
been fixed in the contract, the creditor must give his co-operation at the required time,
otherwise he will be in mora (mora creditoris/more ex re). If no time has been fixed for co-
operation, or if the debtor wants to perform before or after the time set for performance, the
debtor must demand the creditor’s co-operation in order to place him in mora.

CASE:  Ranch International Pipeline

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Remedies for Breach of Contract

1. Specific performance
2. Damages
3. Cancellation / Rescission

Specific Performance
Interdict is the opposite of specific performance. Interdict is when on rectifies the wrong of
another person. Eg: intervening in another person’s work, the court can order you to stop the
contract.

Case: Benson v SA Mutual Life Insurance 1984 (1) SA 776

SP is an order to perform a specific act in pursuance of a contractual obligation.

Our law is clearer, the plaintiff is always entitled to claim SP and his claim will be granted
subject to the court’s discretion.

In the following instances SP is not possible:

a. Where damages will adequately compensate the plaintiff.
b. Where it is difficult for the court to enforce its decree (for SP)
c. Where the subject matter (merx) can be easily bought from else where
d. Where SP entails (involves) the rendering of services of a personal nature
e. Where an order from SP would operate unreasonably hardly on the defendant.

Defence of SP that some can raise:

Y ------- X
Sale: 1 Price
2 Consensus
3 Merx

Y is the seller of a house, X is the buyer. They agree on the price. It is Y’s duty to transfer the
merx and X’s obligation to pay the price. “Reciprocal Obligation”.
If X fails to pay, Y can take X to court.
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A defence called Exceptio non adimpletic contractus is a defence which applies in cases of
reciprocal obligation. Reciprocal contract is a contract in which parties create reciprocal
obligation. This reciprocal contract arises when the respective performances are undertaken,
specifically one in exchange for the other. Whether reciprocal obligation ares, it will depend
on the intention of the parties of the contract. Following contracts (contract of sale, contract
lease) always involve the doctrine of reciprocity. The principle of reciprocity entails that a
party is not entitled to performance unless he has himself performed completely or has
tendered proper performance.

CASE  BK Toolings v Scope Precision Engineering

Cancellation as a remedy
Restitution as a requirement for cancellation: if a party to a contract of sale breaches the
contract, you can cancel the contract, but you have to give back what you have received in
the performance of the other party. Both parties return to their original positions. This rule is
subject to exemption such as the returning of a defective thing (eg: one cannot return rotten
eggs, soap). One does not benefit from it. But if the other party benefits the court will ask it
to pay back the amount owed.

The requirement is of restitution comes into place/existence where a party to a contract,

seeking to cancel the contract has received performance in terms of reciprocal obligation.
In principle such a party must be able to return or restore what he has received otherwise he
cannot reside from the contract. The ability to make restitution is a integral part of the
process of cancellation and is regarded as a suspensive conditions for lawful cancellation.

Restitution is required for cancellation only if it is equitable (rules of natural justice). In

general a party whose inability to restore is not due to his own fault will be still allowed or
entitled to cancel the contract, provided that he dies not gain an advantage from the
performance that has been delivered.

According to Harper v Webster, a party who is responsible for the inability to make
restitution is nevertheless entitled to the return of his performance if he can still substantially
return what he has received and make good any shortfall by means of monetary payment.

Case: Marks Ltd v Laughton 1920 AD 12

SA Oil and Fat Industry v Park… 1916 AD 400

Damages as a remedy
Contractual damages: they should place the innocent party in the position that it should of
been if the contract had been performed. It is a positive approach, sometimes also know as
the profit approach.
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CASE  Holmdene Brickworks v Roberts Construction

(general damages)
 Shatz Investment (Pty) Ltd v Kalovyans
(special damages)

Special Damages: loss of profit and loss of “good will”.

How does on know the difference between general damages and special damages?
GD: flowing directly from the contract (such as in the Holmdene Brickworks case), the
expenses were made directly from the breach of the contract (latent defect).
SD: damages which are too remote to be foreseeable at the time of contract. Too remote to be
recoverable, but if one can convince the court that the breach of contract caused the loss,
damages will be recoverable.

CASE:  Novick v Benjamin 1972 2 SA 842

(involves repudiation)

*Assessment of damages for anticipatory breach/repudiation: one starts from the time when
the obligation is to be performed.