Watson v Fintrust Properties (Pty) Ltd

• Jurisdiction: South Africa

Watson v Fintrust Properties (Pty) Ltd
1987 (2) SA 739 (C)

1987 (2) SA p739

Citation	1987 (2) SA 739 (C)
Court	Cape Provincial Division
Judge	Baker J
Heard	April 22, 1986
Judgment	January 29, 1987

Flynote : Sleutelwoorde

Principal and agent — Estate agent — Remedies of agent B — Where principal prevents agent from earning remuneration, claim one for damages because, ex hypothesi, agent has not earned it — Solatium awarded to successful agent then considered as damages — Where commission earned C and principal frustrates the agent's right by some act which allows the fictional fulfilment doctrine to be invoked by the agent, the claim is one for commission — Where agent brought about binding agreement between principal and buyer and former fails to benefit from the agreement because he chooses voluntarily to release buyer, agent's right to commission D remains unaffected and agent's claim is one for commission.

Principal and agent — Estate agent — Action for payment of commission — Principal instructing agent 'to bring about a sale' of certain land — Sale concluded and agent to be paid R8 000 commission — Purchaser failing to comply with agreement and principal releasing purchaser without consent of E agent — Agent suing for commission — Such not a claim for damages but for commission earned — Principal requiring further particulars as to whether buyer able to pay — Such particulars not strictly necessary in terms of Rule 21(1) of Uniform Rules of Court — Furthermore, if principal wanted to rely on fact (if it was a fact) that buyer neither ready nor F willing nor able to perform, principal had onus to plead and prove it — Doctrine of fictional fulfilment applying as principal prevented agent from receiving commission — Principal by normal rule bound to pay once agent fulfilled mandate — Agent's claim based on fulfilment of a mandate to bring about valid and binding contract and not a mandate to G introduce willing buyer or find a purchaser — Accordingly agent did not have to allege readiness, willingness and ability on part of purchaser — Particulars of claim not excipiable — Application for further particulars dismissed with costs.

Headnote : Kopnota

In estate agency cases, the question of prevention from earning H remuneration (leading to a claim for damages) and the matter of prevention from obtaining an already earned remuneration are two quite distinct matters. When the agent has been prevented from carrying out his mandate, his only possible claim is one for damages: he cannot claim commission because he has not, ex hypothesi, earned it. But where the commission has been earned but the principal frustrates the agent's right by some act which allows the fictional fulfilment doctrine to be invoked by the agent, the claim remains one for commission. Where an agent I has brought about a binding agreement between his principal and a buyer, and the former fails to benefit from the agreement because he chooses voluntarily to release the buyer, the agent's right to commission, which accrued when the agreement was made, remains unaffected, ie it is a commission case and not a damages case, In a damages case the agent obviously does not have to plead willingness and ability if he has not yet (because of his principal's act) got as far as producing a buyer. If he has, he may well plead willingness and ability. But in principle the two actions are different. If the J principal,

1987 (2) SA p740

A by some wrongful act or default, prevents the agent from earning his commission the agent is entitled to recover as damages the actual loss sustained. The agent sues for damages, not for commission for services rendered. The solatium awarded to a successful plaintiff in such a case is considered damages and not commission for services rendered.

The defendant seller (the present applicant) instructed the B plaintiff (the estate agent and the present respondent) 'to bring about a sale' of certain land for R145 000 or thereabouts and agreed to pay 'commission at the usual rates' in the event that the sale was effected as aforesaid. On 17 February 1984 the defendant signed a written agreement of sale with Mrs F for R150 000 and the plaintiff agreed to accept R8 000 commission. The plaintiff's efforts were the effective cause of the sale which was valid and binding. Mrs F failed to pay the deposit and the defendant failed to compel her to do so. The defendant and Mrs F cancelled the sale without the C consent of the plaintiff. The plaintiff sued for commission. The defendant filed a request for further particulars. The plaintiff replied and defendant brought an application for an order compelling the plaintiff to furnish certain further particulars. The defendant's counsel contended that the plaintiff had an onus to prove that the purchaser was able to pay the deposit and balance when they fell due and, as the purchaser's ability to perform was part of the factum D probandum, the defendant was entitled to the particulars requested to fill in the picture of the plaintiff's cause of action. It was therefore submitted that the failure of the plaintiff to allege that the purchaser, Mrs F, was a willing and able buyer rendered the declaration excipiable as disclosing no cause of action. The plaintiff contended that its claim was for liquidated damages for a wrongful act by defendant whereby the plaintiff was prevented from receiving its commission and in respect of which the doctrine of fictional fulfilment applied. It was further argued that the E question whether the purchaser was at all material times willing and/or able to complete the sale by performing her obligation was of no relevance to the question between the defendant and the purchaser that the sale was valid and binding. It was alleged that the defendant knew that, if she cancelled the sale, the plaintiff would be deprived of commission and that fact, plus the failure to obtain the plaintiff's consent to the cancellation, was sufficient to establish the plaintiff's cause of action which was for damages F liquidated as at date of breach. Alternatively, if it was the defendant's case that the purchaser was unable to pay the purchase price and was thereby absolved from performing her duty to the plaintiff, it was for the defendant to plead this.

Held, that there were two reasons why the application had to be dismissed: in the first place the particulars sought were not, in terms of Rule 21(1) of the Uniform Rules of Court, strictly necessary to enable the defendant to plead as the plaintiff had made out a cause of action and the defendant could plead to it.

Held, further, that, on a proper construction of the pleadings, the plaintiff was suing G for commission not damages and counsel could not, merely by arguing that plaintiff's claim was for liquidated damages, convert a claim for remuneration (commission) into a claim for damages.

Held, further, that, on the facts, the mandate here was not to find a purchaser but to bring about a sale which had been concluded.

Held, further, that, if the seller wanted to rely on the fact (if it was a fact) that H the buyer was neither ready, willing nor able to perform, the seller must show that and must accept the onus of pleading and proving it.

Held, further, that the doctrine of fictional fulfilment applied when the principal prevented the agent from earning his commission and when the principal prevented the agent from receiving commission already earned; and in the present case the second situation applied.

Held, further, that the seller was, by the normal rule, bound to pay once the agent I had fulfilled its mandate.

Held, further, that the agent's claim was based on fulfilment of a mandate to bring about a valid and binding contract, not a mandate to introduce ah able and willing buyer or 'find a purchaser'.

Held, accordingly, that the agent did not have to allege J readiness, willingness and ability on the part of the purchaser. Application dismissed with costs.

1987 (2) SA p741

Case Information

Application for an order compelling the furnishing of further particulars. The nature of the pleadings appears from the reasons for judgment.

F M Klopper for applicant (defendant).

R R Horn for the respondent (plaintiff).

Cur adv vult.

Postea (January 29). B

Judgment

Baker J:

This is an application for further particulars brought by defendant in the main action. In that action the only pleadings filed to date are the statement of claim, a request C for particulars to the claim, and a limited reply thereto.

The background to the application is this: Plaintiff is an estate agent. Defendant owned certain land at Rooi Els on the False Bay coast east of Gordon's Bay. On 25 January 1984 defendant orally instructed plaintiff (in the person of one W J Louw) to 'bring about the sale' of this land for R145 000 or D thereabouts, and agreed to pay plaintiff 'commission at the usual rates in the event that the sale of the said property was effected as aforesaid'. On 17 February 1984 defendant signed a written agreement of sale with a Mrs G D Ferguson for R150 000. Plaintiff's efforts were the effective cause of this sale, which was a valid and binding one. Plaintiff agreed to accept R8 000 as commission (notwithstanding that the 'usual' commission at 6% of the price would have been R9 000). The deed E of sale between seller and buyer contains the following provisions having a bearing on the agent's commission:

'1.2

Purchase price

The purchase price payable by the purchaser to the seller is the amount of R150 000 and shall be payable as follows:

a

deposit of R60 000 payable within two months from date F hereof and which amount shall be made available to the seller and

b

the balance of R90 000 to be paid by the purchaser to the seller six months from date hereof.

1.7

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