Author: Linda

REPUDIATION

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Repudiation of a contract is also at times referred to as anticipatory breach and occurs when one party refuses or becomes unable to honour or abide by the terms and obligations of the contract. Repudiation happens when one of the contracting parties acts in a way that amply and definitely implies that he or she will not honour the terms of the agreement, whether by words or deeds.

An innocent party can obtain recourse in the form of an interdict or specific performance, depending on which recourse best suits their circumstance. One may note that to successfully plead their case they will have to satisfy the court of the following;

  1. There must be conduct indicating a refusal to perform
  2. There must not be any justification for refusal to perform;
  3. The innocent party should accept repudiation

This is for general information purposes only.

NON-DISCLOSURE AGREEMENTS

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A non-disclosure agreement (also referred to as an NDA) is a contract that is enforceable in terms of the law and creates a relationship between two or more parties. The relationship is characterized by confidentiality. A non-disclosure agreement may also be referred to as a confidentiality agreement amongst other names. The signatories agree that any sensitive information they may collect, discuss or share will not be divulged to any third parties.

This form of agreement can be applied to the protection of trade secrets. A trade secret is defined as information that is subject to reasonable attempts to maintain its secrecy, has value to others who cannot lawfully receive the knowledge and has either current or potential independent economic value[1]. As long as a business technique is kept private and secure, it can be protected as a trade secret. The trade secrets are protected through non-disclosure agreements that are signed between the employer and the employee amongst other parties. The employer can go further and place a covenant in restraint of trade to further protect their trade secret but that is a story for another day.

A non-disclosure agreement may be relied on by inventors that intend to exhibit their inventions to potential partners, distributors, agents or other parties so as to ensure that their invention is protected. Companies frequently use non-disclosure agreements when they get into negotiations with other companies or entities. Non-disclosure agreements afford the parties the freedom to exchange private (confidential) information without worrying that their rivals would obtain the information and exploit such to their advantage. The agreement can cater to both parties’ interests and in the event that this is the case, the agreement is referred to as a mutual non-disclosure agreement.

CONTENTS OF A NON-DISCLOSURE AGREEMENT

  1. Details of the parties such as the name of individual, company or entity, identity particulars such as ID number or registration number and or place of residence or business,
  2. The terms of the agreement. The agreement must highlight who is bound by the terms of confidentiality as outlined by the agreement (either one or all) together with the conduct expected of all parties concerned,
  3. The parties that are permitted access to the confidential information and third parties that are not permitted access to the information,
  4. The definition of “confidential information” in clear and concise terms together with a clause that defines what deems or constitutes confidential information,
  5. Term or duration of the agreement,
  6. Breach of the agreement (parties can have a clause that talks about what constitutes breach),
  7. Dispute resolution (where and how disputes may be resolved some may choose the courts while others opt for arbitration amongst other factors and

INFORMATION THAT CANNOT BE HELD TO BE CONFIDENTIAL

  1. Information that the other party/s(recipient) is already familiar with
  2. Information that is known to the public.
  3. Information disclosed to the other party/s (recipient) by a third party (that is not a party to the agreement and as such has no duty of confidentiality to the disclosing party).

Non-disclosure agreements encourage the doing of business as they provide companies, individuals and entities with the confidence to freely share information knowing that it shall be kept secret. For all your contracts please feel free to contact our team of attorneys that will assist you with such.

This is for general information purposes only.

[1] https://www.uspto.gov/ip-policy/trade-secret-policy

VICARIOUS LIABILITY

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The principle of vicarious liability stipulates that an employer is vicariously liable for all the delicts that are committed by his or her employee during the course and scope of their employment. It should be highlighted that independent contractors do not fall under the ambit of employees and as such employers are not vicariously liable for their actions as they are not committed during the course and scope of their employment.

This principle is applied because the employer retains the services of the employee and gains significantly from the works of the employee and as a result is in a much better financial position than the employee to compensate where a wrong has been committed.

The employee may also be accountable for his or her own wrongdoing in the event they went on a frolic of their own and were not acting within the scope of their employment, but in actuality, the employee is rarely sued because they typically lacks the financial means to cover damages.

REQUIREMENTS

The requirements for vicarious liability are that;

  • the delict is committed by an employee who is in the employ of the employer and not an independent contractor; and
  • the employee commits the wrong during the course of his employment.

It should be noted that it is not enough that the employee committed the offense during regular working hours. The employer will not be held responsible if the employee acts only in his or her personal interest and outside the scope of their employment with that company.

REASONING

The doctrine is justified and upheld for the reasons that are listed below;

  • The employer should fairly be held liable for any losses made throughout the course of the business if he or she or it hires people to further his her or its own economic interests;
  • Since the employee frequently lacks the financial means to make restitution, the employer is typically in a much better financial position to compensate the injured party; as a result, it is unfair to demand that the employee makes restitution for a wrong committed while performing work for the employer;
  • By purchasing insurance, spreading the cost to customers and raising the price of goods or services, the employer, which is frequently a sizable business, is far better equipped to bear losses of this nature (i.e. the employer can afford insurance whereas the employee often cannot);
  • By telling employees what to do, an employer increases the possibility that those employees will injure others while also having the power to regulate their behaviour.

The above-cited sentiments were deduced from the case of Mungofa v Muderede & Ors[1]. In the event that the employee of a service provider that you engaged acted negligently, please feel free to engage our team that will assist you accordingly. For all your litigation needs please do not hesitate to contact our team and make an appointment with us.

This is for general information purposes only.  

[1] HH-129-03.