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    Lehlohonolo Oliphant
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    BCOM HRM Y2_Com Law_ Additional Notes

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    6 views3 pages

    BCOM HRM Y2 - Com Law - Additional Notes

    Uploaded by

    Lehlohonolo Oliphant

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 3
    [50] Peters, Flamman & Cov Kokstad Municipality 1919 AD 427 Prior to the outbreak ofthe fist workd Voor die uittreck van dic eerste wérel~ eli I} the partnership of Petes, orlg in 1915, het die vennootskap van Humman & Co. hid contracted with Peters, Flamman & Co'n konirak mst the Kokstad Municipality to light the die Kokstad munisipaliteitgslait om iets of Kokatad with acetylene gas Kokstad se sate vir‘ tydperk van 20 Fora period of 20 years. In 1915 the jaar met aseileengas te veri In 1915 i farina, who were enemy aliens, were die vennote, wat vyandelike onderdane Palumed and in 1917 their parinrship was, gsintermeer en in 1917 is hulle vic sound sp puriuant to an order vennoetskap ontbind deur ‘n bevel wat Wee by the Treasury in. terms of iagevolge a 22) van Wet 39 van 1916 PRGMb) of Act 39spf 1916. The deur die Tesourie uitgercik is. Die renipaliy then sued for damages for munispalitet het daarop aksieingestel Treachvof gontract ‘The action fled. om skadevergocding op prond van The Appellate Division held that in a Kontrakbresk, Dic aksie het| mis ce ePPsupervening Impossibility of Die Appelaeting fet besis dat i'n Steformance which occurs without geval van onmooatikwording van pres Fault on the part of the debtor and sie wat plaasvind sonder dc skuld van tnthout his Dearing the risk of the die skuldensae en sonder dat hy die Tipo, the position in our law is siko dra vin die onmoontlikwording, tre emtne as it waz in Roman law, die posi in ons reg diesel i as wat wencir that the obigation(s) which dit in die Romeinse reg was, naamlik [rove tthe time of contracting i (are) dat die verbintens(se) wat tydens xtinguished as soon as performance Kontrakslutng onistaan et vitzewis Eevomer impossible and the debtor is word sodrs as prestaic onmooatik Consequeniy discharged (rom his duly word en dit die skuldenaar gevlgi to perform, ‘an sy presaseverpligting bevy word Sovomon ACI: (424) To theoe efreumstances it is clear that by vetue of this Act of State it became impossible for the first defendants fo perform their obligations under the contract Nu ws the second defendant in any better postion, For his authority under ‘Transvaal Act 31 of 1909 was limited to carrying on the business ofthe partnership Only in to far as might be necessary for the beneficial winding-up thereof, and his ‘Ridense ws clear tht vit was not necessary to cary ot the working of the plant for the purpose of winding-up the eetate™. AS a matter of fact he did cary it on for a time, tl the 25th July, 1917, but that was only because he had a supply of Carkide on hand, and he thought it well co continus until that was exhausted. ‘Thereafter in accordance with hie duty as controller he proceeded to realize the troverty of the partnership, and pid over tothe Custodian of Enemy property the vine of P3LLI74. "The position, therefore, was that by the order of the Treasury 314 316 Contract Law Casebook Be ontract Law Casebook Council of King Wiam’s Town and other South Attica cases. Again in Morgan and Ramsay v Cornelis and Hollis (31 NPD 438) tis sai “This impossibly ares afer the contract was made, ad the ese appears (ofl witin the rue that wheres pay by his own contract creates a duty or charge upon himself, he fs Bound fo make ood notwithstanding any accident or inevitable necessity, because he might have ‘provided against it by his contact.” Again the cases of Norden » Shaw ara Hap Divisional Counci! of King Wilian's Town ate refered to a8 authorities for this statement ofthe law. This rule, however, as laid down in Parade ¥ Jan, is not consistent withthe principles of the Civil Law, and ined it has been considera ‘modified by Inter English decisions. Tus in Horlack Beal (918. 1 AC 525), Lord ‘Wrenbury said: Where a contract has been entered into and by a supervening amos beyond the control of either party its performance has Sccome iporble I ke the {aw to be as follows if a party has expressly contracted to do's lawful net cone ‘what may-—if in other words he has taken upon himself the risk of suche supervening cause. he is iat if t occurs because bythe very hypotheris he has contracted tobe able. Bu fe has not expresly so contracted and mm the pang ofthe contact it appears thatthe paris from the fist must have Known thats {alflment would become imposible if such asupervening cause occured, then poe such a cause occuring both paris are excused from performance. In that exe a

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