Home Fires Transvaal CC v Van Wyk and Another

• Jurisdiction: South Africa
• Judgment Date: 11 October 2001
• Citation: 2002 (2) SA 375 (W)

Home Fires Transvaal CC v Van Wyk and Another
2002 (2) SA 375 (W)

2002 (2) SA p375

Citation	2002 (2) SA 375 (W)
Case No	A5029/2000
Court	Witwatersrand Local Division
Judge	Goldstein J, Boruchowitz J and Farber AJ
Heard	September 28, 2001
Judgment	October 11, 2001
Counsel	C W Jordaan SC for the appellant.; D A Preis SC (with him D J Coetsee) for the respondents.

Flynote : Sleutelwoorde B

Contract — Formation of — Written contract — Party signing contract which he or she has not read — When and when not bound thereby — Party not bound when other party knows he or she has not read contract, other party not misled by party's signature and other party only has him- or herself to blame for party's ignorance of contents of document — Rule C that party signing contract bound by ordinary meaning and effect of words appearing over his or her name having no application if, on proper construction of agreement, terms which it is suggested bind signatory not incorporated therein — Party faxing order form for signature by purchasers but not faxing reverse side thereof containing certain terms and conditions of contract — Inference drawn that seller D not intending reverse side of order to form part of contract and that purchasers accepted offer on basis of what had been submitted to them — Conditions on reverse side not part of contract.

Headnote : Kopnota

Although 'it is a sound principle of law that a man, when he signs a contract, is taken to be bound by the ordinary meaning and effect of E the words which appear over his signature' (Burger v Central South African Railways 1903 TS 571 at 578), a party will not be held bound by his or her signature to a contract which he or she has not read, where the other party knew that he or she had not done so, was not misled by the signature and only had himself to blame for the F other's ignorance of the contents of the document. It need hardly be stated that the rule can have no application if, on a proper construction of the agreement, the terms which it is suggested bind the signatory have not been incorporated therein. (At 380H - H/I and 381H/I - 382A/B.)

The Court, confirming the decision of a single Judge in a Local Division, accordingly held that where the appellant had sent by fax an G order form to the respondents containing the following words at the foot thereof, '(t)his order can only be cancelled on payment of 15% of the total amount: see reverse side for further conditions', but had not sent the 'reverse side' of the order form to the respondents, that appellant had to be held not to have intended to conclude a contract on the basis of the terms and conditions therein set forth. H The Court held that the words appended at the foot of the face of the 'order' which referred to the conditions embodied on the reverse side thereof were meaningless and had to be considered pro non scripto. Reducing the matter to fundamental principle, the Court held that the appellant, by its conduct, submitted a written offer to the respondents. The reverse side of the document embodying the offer had not been sent to them, founding the inference that what was I there set forth was not intended to form part thereof. The respondents in turn had to be held to have accepted the offer on the basis of what had been submitted to them. In short, the contract which arose in consequence of the appellant's offer and the respondents' acceptance thereof fell to be approached on the basis that the terms on the reverse side of the order had not been intended to form part thereof. (At 382A/B - D/E.) J

2002 (2) SA p376

The decision in the Witwatersrand Local Division in Van Wyk and Another v Home Fires Transvaal CC confirmed. A

Cases Considered

Annotations

Reported cases

Aetiology Today CC t/a Somerset Schools v Van Aswegen and Another 1992 (1) SA 807 (W): considered

Bhikhagee v Southern Aviation (Pty) Ltd 1949 (4) SA 105 (E): considered B

Burger v Central South African Railways 1903 TS 571: distinguished

Dlovo v Brian Porter Motors Ltd t/a Port Motors Newlands 1994 (2) SA 518 (C): considered

Fourie NO v Hansen and Another 2001 (2) SA 823 (W): referred to

George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A): considered C

Glenburn Hotels (Pvt) Ltd v England 1972 (2) SA 660 (RA): considered

Goedhals v Massey-Harris & Co 1939 EDL 314: considered

Mathole v Mothle 1951 (1) SA 256 (T): considered

Moshal Gevisser (Trademarket) Ltd v Midlands Paraffin Co 1977 (1) SA 64 (N): considered

Payne v Minister of Transport 1995 (4) SA 153 (C): dictum at 159G - 160I applied D

Pieters & Co v Salomon 1911 AD 121: dictum at 137 - 8 applied

Slabbert, Verster & Malherbe (Noord Vrystaat) (Edms) Bpk v Gellie Slaghuise (Edms) Bpk en 'n Ander 1984 (1) SA 491 (O): considered

South African Railways and Harbours v National Bank of South Africa Ltd 1924 AD 704: dictum at 715 - 16 applied E

Spes Bona Bank v Portals Water Treatment 1981 (1) SA 618 (W): referred to

Stocks Construction (OFS) (Pty) Ltd v Metter-Pingon (Pty) Ltd 1980 (1) SA 507 (A): compared

Van Ryn Wine & Spirit Co v Chandos Bar 1928 TPD 417: applied F

Van Wyk v Otten 1963 (1) SA 415 (O): dictum at 418A - 419H applied.

Case Information

Appeal from a decision of a single Judge (Willis J) in the Witwatersrand Local Division. The facts appear from the judgment of Farber AJ.

C W Jordaan SC for the appellant.

D A Preis SC (with him D J Coetsee) for the respondents. G

Cur adv vult.

Postea (October 11).

Judgment

Farber AJ:

On 15 May 1997 the first and second respondents' home situate at 220 Second Avenue, Verwoerd Park, Alberton, was extensively damaged by a fire which arose H in consequence of the defective installation of a free-standing furnace. Contending, in the main, that the appellant had contractually undertaken to install the furnace and that it had breached that contract by doing so defectively, the first and second respondents, who were at all material times married to each other in community of I property, instituted an action against it in the Witwatersrand Local Division for the payment of damages in the sum of R361 686,44.

At the commencement of the hearing before Willis J, the issue of liability was, pursuant to the provisions of Uniform Rule of Court 33(4), separated from that relating to damages. J

2002 (2) SA p377

Farber AJ

The former issue raised two independent, albeit related enquiries. The first involved the question whether the contract A admittedly concluded by the parties imposed an obligation on the appellant to install the furnace. The second involved the question whether, postulating that the appellant had in fact undertaken contractually to install the furnace, such contract was subject to the appellant's standard terms and conditions of contract, which, so it B was suggested, would have had the effect of freeing it from liability in consequence of its defective performance.

The Court a quo resolved both enquiries in favour of the respondents. In consequence, it held that the appellant was 'liable for payment of such damages as . . .' the respondents '. . . suffered as a result of the fire which occurred at the C premises on 15 May 1997'. Costs followed the event, albeit restricted to the engagement by the respondents of one counsel only.

Leave having been granted by the Court a quo to do so, the appellant now appeals to this Court.

The facts are common cause and may conveniently be detailed thus: D

The respondents were desirous of acquiring a free-standing furnace for use in their home. With this object in mind, the first respondent telephoned the appellant, a dealer in that commodity, and spoke to one of its representatives. He sought and obtained some technical information relating to the furnace. He was also furnished with the price of the furnace and the costs of its installation. E

The first respondent thereafter discussed the matter with the second respondent and, arising therefrom, he on the following day again spoke to the representative in question over the telephone. He advised her that he wished to have the furnace installed. She in turn told him that he would be required to sign what was described in F evidence as an order form ('bestelvorm'). It was agreed that payment would be made in cash on installation, which was to take place as soon as possible. Arrangements were made for the relevant 'order form' to be transmitted to the first respondent by telefacsimile. G

On 15 April 1997 a document bearing that date and headed 'Bestelling/Order' was so transmitted by the appellant to the first respondent. It was in the name of the appellant and had been signed by one of its representatives. It was addressed to the first respondent and the body thereof had the following recorded on it: H

Hoev/Qty	Beskrywing/Description	R	c
1	800mm vrystaande kaggel met 3,617 pyp, rooster, diep aspan, haan...