Bischofberger v Vaneyk

• Jurisdiction: South Africa
• Citation: 1981 (2) SA 607 (W)

Bischofberger v Vaneyk
1981 (2) SA 607 (W)

1981 (2) SA p607

Citation	1981 (2) SA 607 (W)
Court	Witwatersrand Local Division
Judge	Boshoff JP
Heard	November 11, 1980
Judgment	February 16, 1981

Flynote : Sleutelwoorde

E Contract — Impossibility of performance — Effect — When performance of the contract excused — When obligations extinguished thereby.

Headnote : Kopnota

In our law, the general rule is that if performance of the contract has become impossible through no fault of the debtor, the obligations under the contract are extinguished. This general rule is not so absolute as to override the terms or the implications of the contract. The difference between our law and the English law is that in our law regard is had to G the general rule and then to the contract to see how the rule should be applied in regard to specific facts of the particular contract involved, whereas in English law regard is had to the contract alone. It follows from this that, when the Court has to decide on the effect of impossibility of performance on a contract, the Court should first have regard to the general rule that impossibility of performance does in general excuse the performance of a contract, but does not do so in all cases, and must then look to the nature of the contract, the relation of H the parties, the circumstances of the case and the nature of the impossibility to see whether the general rule ought, in the particular circumstances of the case, to be applied. In this connection regard must be had not only to the nature of the contract, but also to the causes of the impossibility. If the causes were in the contemplation of the parties, they are generally speaking bound by the contract. If, on the contrary, they were such as no human foresight could have foreseen, the obligations under the contract are extinguished.

Case Information

Application for an order of ejectment. The facts appear from the reasons for judgment.

1981 (2) SA p608

J Josephson for the applicant.

G J Essey for the respondent.

A [The Court granted the application with costs and handed in the following reasons for judgment on 16 February.]

Judgment

Boshoff, JP.:

In this matter the applicant, the registered owner of the undermentioned property, was granted, in motion proceedings, the following order against the respondent:

"1.

That the respondent and all persons claiming right and title to the occupation through the respondent be ejected from lot 182 situate at 74 Klip Street, in the township of Observatory Extension, district of Johannesburg.

2.

C That the offer to purchase signed by the applicant and respondent and dated 17 January 1980 is hereby declared to be cancelled.

3.

That the respondent pay the costs occasioned by this application."

D The Court indicated that it would furnish reasons if required by the respondent so to do and the reasons now follow:

On 16 January 1980 the respondent made a written offer to purchase the aforementioned property from the applicant, which offer the applicant accepted on 17 January 1980. In terms of the accepted offer the respondent purchased the property for the sum of R65 000 for which the purchaser:

E "shall within 30 days of the loan clause 11 (a) or within 30 days of the moneys being received by Hyperfin Ltd whichever is the later furnish a banker's or building society's guarantee made payable to the seller or nominee/s free of bank exchange, at Johannesburg upon registration of transfer into the name of the purchaser".

F The material portion of clause 11 (a) provides as follows:

"Any agreement of sale resulting from the acceptance of this offer of purchase by the seller shall be subject to the suspensive condition that the purchaser... is able to raise a loan upon the security of a first mortgage bond to be passed over the property for a sum of not less than R35 000 at prevailing building society rates and terms. Should such loan not be G approved in principle within 45 days of acceptance hereof or such other date as the parties may agree in writing this sale shall be automatically cancelled and of no force and effect..."

A loan for R35 000 upon the security of a first mortgage bond was approved within 45 days of the agreement, namely on 26 January 1980, by the Allied Building Society and guarantees for...