Teaching and Learning Memorandum

Module: General Principles of the Law of

Contract (HGPLC230-1)
Week number (Date): 3 (10 March 2022)
Unit covered: Unit 3 (Chapter 4)

QUESTION ONE

Ulrich is an employee of the state. There is currently a military invasion happening in his country and
the state needs strong and healthy men to help fight in the battle as soon as possible. Ulrich was
approached by government officials to enlist in the armed forces. Ulrich is definitely not keen on
enlisting and fighting in the battle because he has a wife and children that he cares for. However, the
government officials threatened Ulrich and said that he would be imprisoned or interned 1, if he did not
join the armed forces. Ultimately, Ulrich felt the pressure and decided to enlist.

Required:

1.1 Did Ulrich enlist in the armed forces of his own free will? Was his consensus obtained properly?
(2 marks)

1.2 With reference to case law, lay out the “elements” that a contractant must prove in order to rescind
a contract based on the above-mentioned ground? (6 marks)

1.3 Apply the “elements” set out (Q1.2) above to the factual scenario. (10 marks)

Answer: Unit 3, Chapter 4, page 112

• 1.1 No, ✔ Ulrich did not enlist in the armed forced out of his own free will. He was acting under
duress and therefore, his consensus was obtained improperly. ✔

1 “interned” means to confine (someone) as a prisoner, especially for political or military reasons.
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 • 1.2 The leading case of Broodryk v Smuts NO 1942 TPD 47✔set out the ‘elements necessary to
set aside a contract on the grounds of duress’ as follows:

a. Actual violence or reasonable fear. ✔

b. The fear must be caused by the threat of some considerable evil to the party or his
family. ✔

c. It must be the threat of an imminent or inevitable evil. ✔

d. The threat or intimidation must be contra bonos mores. ✔

e. The moral pressures used must have caused damage.’ ✔

• 1.3 (In this section, apply the elements to the scenario. Remember in scenario type questions,
one must always apply the legal principles to the factual scenario.) Students answers may vary.

• Element a) : actual violence or reasonable fear

There definitely was an element of reasonable fear because the government officials threatened
to imprison or intern Ulrich. The fear of imprisonment is very reasonable. Ulrich may fear that he
might never see his family again. ✔✔

• Element b) : fear must be caused by the threat of some considerable to the party or family.

The threat of imprisonment was aimed at Ulrich. His freedom was at stake and would have
caused him to enlist just to avoid being imprisoned.✔✔

• Element c) : threat must be imminent or inevitable evil

The threat must be about to happen or there must be no way to prevent it. The threat is inevitable
as the country was currently being invaded and the state were looking for men to enlist as soon
as possible. Therefore, it is inevitable that the government officials would have imprisoned Ulrich
at some point, if he did not enlist. He had no other choice. ✔✔

• Element d) : threat or intimidation must be contra bonos mores

The threat of imprisonment without legal justification is wrongful and against the legal convictions
of society. ✔✔

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 • Element e) the moral pressure must have caused damage

The moral pressure caused damage. ✔✔

Additional sources to peruse: NB

• IRAC: https://youveenteredlawland.com/irac-for-law-school-essays-and-exams/

• Chapter 2: The South African position on duress (pages 11-16 only):

https://ujcontent.uj.ac.za/vital/access/services/Download/uj:34838/SOURCE1

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