Trollip v Jordaan

• Jurisdiction: South Africa
• Judgment Date: 14 November 1960
• Citation: 1961 (1) SA 238 (A)

Trollip v Jordaan
1961 (1) SA 238 (A)

1961 (1) SA p238

Citation	1961 (1) SA 238 (A)
Court	Appellate Division
Judge	Steyn CJ, Hoexter JA, Van Blerk JA, Botha AJA and Van Winsen AJA
Heard	September 9, 1960
Judgment	November 14, 1960

Flynote : Sleutelwoorde E

Sale — Of farm — Unilateral mistake by purchaser resulting from incorrect F pointing out of boundaries by seller's agent — No common mistake — No error in corpore — Property purchased by deed of sale as per title deeds — Portion of afforested land pointed out not falling within boundaries — Voetstoots clause not referring to pointing out but to property in deed — True cause of action the misrepresentation — Seller protected from G consequences by literal interpretation of clauses in deed — Extrinsic evidence to interpret otherwise inadmissible.

Headnote : Kopnota

Appellant had purchased a farm from the respondent in terms of a deed of sale which correctly reflected the boundaries and extent as set out in the respondent's title deeds. Clause 8 of the deed read as follows: 'The parties hereto acknowledge that the aforewritten agreement constitutes H the entire contract between them and no other conditions, stipulations, warranties or representations whatsoever have been made by either party or his/her/its agents other than such as may be included herein and signed by the parties hereto.' Moreover clause 1 contained the following words: 'the seller makes no representation and no warranty to the purchaser inducing the sale'. Appellant had been misled by representations of the respondent's agents into believing that the property described in the deed of sale included more afforested land than in fact it did, as a result of the agents having incorrectly pointed out the boundaries. In his declaration appellant had claimed that his mistake was material, reasonable and bona fide, that but for it he would not have bought, and accordingly that the deed was

1961 (1) SA p239

void. Respondent having successfully excepted to the declaration in a Provincial Division, in an appeal,

Held, per HOEXTER, J.A.; VAN BLERK, J.A., and VAN WINSEN, A.J.A., concurring; STEYN, C.J. and BOTHA, A.J.A., dissenting, that the cause of action relied on by the appellant in his declaration and further particulars was his own unilateral mistake, induced by misrepresentation on the part of the respondent.

Held, further, that in the first place an innocent misrepresentation A rendered a contract voidable and not void, and that the mere fact that it resulted in a unilateral mistake on the part of the representee could make no difference to its effect.

Held, further, as the appellant was actually relying on an innocent misrepresentation as avoiding the contract, that he could not disregard any clause in the contract which annulled the effect of such a misrepresentation.

Held, further, that it was the property described in the title deeds B which the appellant had bought, and not some other property, and that a mistake as to the amount of afforested land included in the property could not be regarded as an error in corpore.

Held, therefore, that appellant's true cause of action was neither a common mistake nor an error in corpore but a misrepresentation.

Held, further, as there was nothing in the contract which would make it C absurd to give the words 'no representations whatsoever' any other than their ordinary literal meaning, that evidence of extrinsic circumstances would not be admissible to show that they should be given any other meaning in this particular deed.

Held, further, that the statement in clause 1 that 'the property is sold voetstoots, that is to say as seen, inspected and approved by the purchaser' did not refer to the land alleged to have been wrongly pointed out some time before the signing of the deed: it referred to the property as defined in the deed.

D Held, therefore, as the particular representation complained of was covered by the words in clauses 1 and 8, that no mistaken belief induced by such representation could have any effect on the deed of sale, and that the exception to the declaration had rightly been upheld.

The decision in the Transvaal Provincial Division in Trollip v Jordaan, confirmed. E

Case Information

Appeal from a decision in the Transvaal Provincial Division upholding an exception to a declaration. The nature of the pleadings appears from the judgment of HOEXTER, J.A.

H. C. Nicholas, for the appellant: Although the test of intention in the formation of contracts is objective, proof of mistake affirmatively F excludes intention; see Norwich Union Fire Insurance Society, Ltd v Wm. H. Price, Ltd., 1934 A.C. at p. 463. There are then the external indicia of a contract but nevertheless no consensus ad idem. When, although both parties think that they have entered into a contract, their minds are never ad idem, a Court of law must hold that there was G no contract; see Collen v Rietfontein Engineering Works, 1948 (1) SA at p. 428. Where there is no true consensus ad idem, the Court cannot apply the well-known principle stated in Smith v Hughes, 6 Q.B. at p. 607; see Diamond v Kernick, 1947 (3) SA at p. 83. The general rule is that the mere existence of an erroneous belief in the mind of one of the parties to a contract is not a sufficient ground for annulling it, the H reason being that otherwise the security of written engagements would be destroyed; see Stewart v Kennedy and Another, 15 A.C. 108, and the cases cited in Collen's case, supra at pp. 430 - 1. This is the principle on which the following cases were decided; S.A.R. & H v National Bank of South Africa, Ltd., 1924 AD 704; Merrington v Davidson and Others, 22 S.C. 148; de Villiers v Parys Town Council, 1910 O P.D. 55. Where, however, the erroneous belief has been induced by one of the parties to the transaction, the general rule

1961 (1) SA p240

ceases to be applicable, and the party who is mistaken is entitled, if his error is essential or fundamental, to repudiate his apparent assent to the contract; see George v Fairmead (Pty.), Ltd., 1958 (2) SA at A p. 471; National & Overseas Distributors v Potato Board, 1958 (2) SA 473. The English law is similar; see Stewart v Kennedy, supra at p. 118; Wilding v Sanderson, 2 Ch. at p. 550 (quoted with approval in Sampson v Union & Rhodesia Wholesale Ltd. (In liquidation), 1929 AD at p. 480; Halsbury's Laws of England (3rd. ed., vol. II, p. 325, art. 519). Appellant's mistake was an error in corpore. He intended to contract with reference to the farm pointed out to him by respondent B and his agents, while respondent had in mind the farm registered in his name in the Deeds Registry; cf. Wessels Law of Contract in South Africa (secs. 900, 906, 907); Maritz v Pratley, 11 S.C. 345. There was no consensus ad idem and therefore no contract. Alternatively, appellant's mistake was an error in materia or substantia; see Wessels, C ibid secs. 912, 917, 918, 921, 922. This mistake was as to the existence of a quality which made the farm without the quality essentially different from the thing appellant believed it to be; cf. Bell and Another v Lever Bros. Ltd. and Others, 1932 A.C. at p. 218. In any case, the question whether a mistake is an essential error (which would avoid the contract), or merely incidental or collateral error D (which would not) is a matter for evidence and is incapable of being decided on exception; see Wessels, ibid, secs. 920, 922. Where a contract is vitiated by mistake, it is void and not voidable; see Dalrymple, Frank & Feinstein v Friedman, 1954 (4) SA at p. 646; Lee, Introduction to Roman-Dutch Law (3rd ed., pp. 224, 227); Wessels, ibid, E secs. 639, 640; Voet, 4.3.3 (Gane's translation, vol. 1, p. 630). For the English Law, see Norwich Union Insurance Society v Price, 1934 A.C. 455; Halsbury, ibid, vol. 26, pp. 892, 858. Clauses 1 and 8 of the deed of sale have no special sanctity. It is clear, for example, that no agreement of the parties can preclude a defence of fraud, since fraud in the inception of the agreement renders voidable the very agreement not F to set up fraud; see Williston, Contracts (vol. 3, sec. 811); Tullis v Jacson, (1892) 3 Ch. 441. A fortiori, where there was no consensus ad idem and the contract was void in its inception, clauses such as 1 and 8 are also void; cf. Scriven Bros v Rhodesia Hides & Produce Co., Ltd. and Others, 1943 AD at p. 400. Alternatively, if clauses 1 and 8 G are to be regarded as separate and independent undertakings, separable from the contract of sale, they do not have the effect of precluding appellant from establishing the allegations contained in the declaration and further particulars. It is implicit in both the clauses in question that there is in existence a binding contract between the parties. The truth, unknown to both parties, was that the contract was void. As a H result, the parties, in agreeing to these clauses, were under a common mistake as to an essential and integral element of the subject matter; see Bell and Another v Lever Bros., Ltd. and Others, supra at pp. 206, 235, 218, 226, 228, 232, and cf. Wessels, ibid, sec. 59, quoting D. 18.1.9 pr. A voetstoots clause does not ordinarily exclude misrepresentations; see Cockroft v Baxter, 1955 (4) SA 93; Schmidt v Dwyer, 1959 (3) SA 896. It is submitted that it does not exclude essential mistake. The provision that 'the seller shall not profit by any excess nor shall he

1961 (1) SA p241

be liable for any deficiency in nature or extent' simply means that the price is not to be affected if the property is more or less than 955 morgen in extent; cf. Wessels, ibid secs. 928, 930, 931, 933. It is submitted that Sissons v Lloyd, 1960 (1) SA 367, was wrongly decided A and that, in any case, it is distinguishable. It is based on a misreading of Wells v SA Alumenite Co., 1927 AD 69, which...