The Challenge With Writing On Sand - Verbal Agreements | Legal Articles

 

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The Challenge With Writing On Sand - Verbal Agreements

For those who have visited the desert areas and experienced sand dunes, they probably have seen how the shapes and arrangements of these sand dunes quickly change as soon as the wind blows over them. Some have been to the beach and probably wrote names of their loved ones in the sand on the shoreline, to great disappointment when the great waves wash the beach, the names are erased in a huff. No inscription remains on the sand, as if there never was.

In a huff in both a desert and on the shoreline of a beach, what was once written is seen no more. Welcome, this is the risk with verbal contracts.

Under South African law, verbal contracts are binding and effective. However, the challenge remains in proving the existence of the verbal contract, its terms and conditions, in times of dispute. Just like in any dispute, the opposing sides will be arguing their case from a pedestal and angle that puts them at an advantage over the other side. Unfortunately, the biggest loser in this scenario is the truth, and the Courts will have a torrid time in determining the true state of affairs. At the end of the day, the party who will walk away in triumph is the one who would have argued the most probable sequence of events.

There are, however some contracts which may not be executed verbally under the law. This is done to avoid malpractice, disputes and uncertainty. The Alienation of Land Act 68 of 1981 provides in Section 2 (1);

 

No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority.”

 

There are three principles that are to be deduced from here;

  1. The deed of alienation (Offer to Purchase) must be in writing;
  2. Signed by the parties;
  3. If signed by their agents, the agents must have written authority.

 

In the case of Thorpe v Trittenwein [2006] SCA 30 the Supreme Court of Appeal upheld that a Trustee who had signed a deed of transfer without written authority by way of resolution from other Trustees, was therefore not an authorised agent. This is despite the fact that the Resolution had been executed later to authorise the Trustee to sign on behalf of the Trust. Therefore, the three requirements as mentioned above must be manifest at the time of the signing of the agreement.

Despite other types of contracts being valid even if executed verbally, we strong advise parties to reduce their agreements into writing and retain copies of each. In times of dispute documentary evidence holds more weight and does not easily run the risk of being misrepresented.

 

We assist with a wide array of contracts from Commercial Contracts, Lease Agreements as well as Offers to Purchase amongst others. Our Litigation Department is manned by lawyers who have extensive experience in Contract Law.

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The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages.

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