Laws v Rutherfurd

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA and Kotzé JA
• Judgment Date: 27 March 1924
• Citation: 1924 AD 261
• Hearing Date: 27 March 1924
• Court: Appellate Division

Innes, C.J.:

The issue in this appeal is whether the order of the 2nd November making absolute a rule nisi interdicting the appellant or his manager or servants from trespassing or cutting timber, etc., on the farm Scandinavia should be set aside or varied. Respondent is the owner of that farm and the appellant when the rule was obtained was doing work and felling wood on the property. He claimed to be there and justified his acts under the contract of April, 1923, and the legal. I effect of that contract must therefore be considered. All the clauses save the first purport to be presently operative; but sec. 1 which confers upon the appellant a three months' option to enter into the agreement governs the provisions which follows the result being that the

Innes, C.J.

appellant was given an option to enter into a contract on the terms specified, which expired on the 26th July. His decision to accept or decline, it was stipulated should be communicated by registered letter addressed to the respondent at the Post Office, Umtali. Speaking generally, when the acceptance of an offer is conditioned to be made within a time or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to. It is the same principle which applies when a debtor undertakes to discharge an obligation on a specified date; the creditor need make no demand: dies interpellat pro homine, and the debtor is in mora if he fails to pay on the appointed day. So in the converse case of an offer of a right, it is essential that acceptance should be notified within the time limit fixed, which in this instance expired on the 26th July. There was no such timeous notification; and on the 27th July the respondent, through her attorney requested Laws, the option having expired, to remove his plant from the farm. By letter on the following day and by telegram on the 29th, the respondent's attorney notified an acceptance of the option, explaining that the matter had been overlooked, and that the appellant must have known that the offer had been accepted, because of the preparations made upon the property to commence work under the agreement. Those notifications, however, were out of time; and clearly no express acceptance was notified in terms of the contract.

But it is contended that Mrs. Rutherfurd waived her right to insist upon definite written notice as stipulated. That Laws, by his acts and conduct showed that he had decided to accept...