Common Law Remedies for Breach of Contract in South Africa
Contracts form an integral part of our daily lives, and it is not uncommon for disputes to arise from breach of contract. In such instances, the aggrieved party can seek remedies in accordance with South African common law.
Common law is the body of law based on custom, tradition, and judicial decisions, as opposed to statutory law (legislation passed by Parliament). In essence, it is the law created by the courts. The South African legal system is based on Roman-Dutch law, which is a hybrid of Roman law and Dutch law.
The following are some common law remedies for breach of contract in South Africa.
1. Specific Performance
Specific performance is a remedy that compels the defaulting party to perform their obligations under the contract. This remedy is only available where damages would not be an adequate remedy and where the obligations are clear and ascertainable. In other words, specific performance is only granted where money cannot adequately compensate the aggrieved party.
For example, if A contracts with B to sell a rare painting, and B fails to deliver the painting, A can seek specific performance to compel B to deliver the painting.
2. Damages
Damages are the most common remedy for breach of contract in South Africa. Damages aim to compensate the aggrieved party for the loss suffered due to the breach of contract. There are two types of damages:
a. General Damages: General damages compensate the aggrieved party for losses that flow naturally from the breach of contract. These damages are not quantifiable and are usually awarded at the discretion of the court.
b. Special Damages: Special damages compensate the aggrieved party for specific losses that were foreseeable at the time of the contract. These damages are quantifiable and must be proven by the aggrieved party.
For example, if A contracts with B to supply goods and B fails to deliver on time, A can seek damages for the loss of profits suffered due to the delay.
3. Rescission
Rescission is a remedy that cancels the contract and restores the parties to their position before the contract was concluded. This remedy is only available in limited circumstances, such as when there has been a material misrepresentation or fraud.
For example, if A contracts with B to purchase a car and it is discovered that B misrepresented the condition of the car, A can seek rescission to cancel the contract and return the car to B.
4. Retention
Retention is a remedy that allows the aggrieved party to withhold payment of any money owed to the defaulting party until the breach of contract has been remedied. This remedy is only available where the breach is not material and where the aggrieved party is not in breach of the contract.
For example, if A contracts with B to remodel a kitchen and B fails to complete the work on time, A can seek retention to withhold payment until the work is completed.
Conclusion
In conclusion, breach of contract can have serious consequences, and it is important to be aware of the common law remedies available in South Africa. Specific performance, damages, rescission, and retention are all remedies that can be sought depending on the circumstances of the breach. It is advisable to seek legal advice if you believe that your contract has been breached and you wish to seek a remedy.