Category: Legal Resources

BREACH OF CONTRACT

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A contract put simply is a legally enforceable agreement between parties. A contract can be either written or verbal. it is always advisable to enter into a written contract so as to make their life easier in the unfortunate event of breach or dispute. A written contract clearly sets out the roles and obligations of the parties and its existence is easy to prove.

There are some formalities that have to be complied with to ensure that a contract is valid, including;

  • A valid offer by one party and acceptance by the other party;
  • There must be meeting a of the minds (consensus ad idem);
  • The contract must be clear (in terms of obligations amongst other factors, parties must not be left to deduce what is being communicated in terms of the agreement;
  • Must comply with the provisions of the law;
  • Performance must be possible;
  • Parties must intend to be bound in terms of the agreement;

At times a contract is not performed according to the expectations set out, and breach occurs. When this happens there are options of recourse available to the aggrieved party. Remedies available can either have the contract fulfilled or cancelled resulting in parties returning to the status quo ante (the position they were in prior to the contract).

SPECIFIC PERFORMANCE

This is the process whereby the breaching party is called upon to perform their obligations in terms of the contract as had been agreed to in terms of the agreement by the aggrieved party.

CANCELLATION

Parties may choose to cancel the contract and opt to have each of them restored to the position that they were in prior to the contract (status quo ante). Cancellation results in the restoration of any performance that was done by either party and does away with or extinguishes any present or future obligations in terms of the contract.

INTERDICT

The aggrieved party can make an application in the courts for a mandatory interdict that then compels the other party to perform their obligations in terms of the contract or a prohibitory interdict that prohibits a party from disposing of or doing certain acts until the matter has been resolved.

DAMAGES

These can be claimed by the aggrieved party so that they are placed in the position that they would have been in had the contact been concluded. Damages are financial in nature. damages can be claimed over with any of the other remedies.

Has a party you entered into a contract with breached the terms of your agreement. Do you want to conduct business and want to reduce the agreement into writing? If the answer is yes, then contact our team of attorneys that will assist you.

This article is for general information purposes only – seek the advice of an attorney. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ESTATE PLANNING AND GUARDIANSHIP

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Guardianship in its widest sense includes custody and embraces the care and control of the minor’s person as well as the administration of his/her property and business affairs. Guardianship in some instances where the parents are alive can be awarded to third parties, although done with exercising extreme caution. The courts are not quick to deprive natural guardians (mother and father of a minor) of their rights unless it is the best interests of the minor child.

Guardianship involves acting on the child’s behalf, it may entail to sue on behalf of the child, enter into and conclude contracts as well as manage/transact in the property of the child. A guardian must act in the best interests of the child. All decisions and undertakings must be done to the benefit of the minor child, which principles the natural guardians (parents) are expected to be guided by. In the event that both parents have passed away then guardianship may be acquired by making an application in the courts of law, and proving that the child has been orphaned and you intend to become the minor’s guardian as it will be in their best interests.

Parents often overlook the importance of the children’s lives after their death, especially if they are still minors, and leave no provisions or plans of which particular adult will take over the role of being the minors’ guardian. Be a parent that does not gamble with their child’s future – plan ahead and put in place safeguards that ensure that your child/ren are taken care of even after your death. Let your wishes be carried out and not the general thoughts of a family tribunal. Plan accordingly for your child/ren, and elect trustworthy adults who will have your child/ren’s best interests at heart always, and will not plunder their inheritance.

Be wise and prudent when it comes to the affairs of your children, and their inheritance! #MakeAPlan

 This article is published for information purposes only – seek the advice of a Lawyer. 

ESTATE PLANNING AND CUSTODY

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Custody refers to the legal right a person of majority status (usually a parent) has over a child, including the right to have physical control of the child; right to regulate their daily life, right to determine questions relating to their education, social and religious upbringing. The custody of a child becomes a cause for concern and discussion in the instances where the parents separate or file for divorce, or in the unfortunate occurrence of either or both parents’ death. In the event of separation or divorce, parents can always sit down and agree which of them will be the custodian parent of the child/ren, or they could exercise joint-custody. At divorce, this is awarded by the High Court through an order.

In the case of death, families usually sit down and discuss the fate of the child/ren left behind – issues custody come up, and it is decided which relative will “take” the child/ren in and provide for them. These decisions are usually guided by principles of practicality and having to make sure life goes on, and may not always be what is best or what the parents would have desired for the minors.

It is important to think ahead of time and plan according for WHO will have custody of your child/ren when you pass away, WHERE will they stay, WHAT will happen to the assets and wealth you had amassed, and HOW will they have access to it. You are assured to have peace of mind knowing that there is an all-encompassing plan about the custody of your child/ren, should you die whist they are still young. The court can also award custody of the minor child to someone other than the parent of the child if it is in the best interest of the minor child/ren.

The #covid19 pandemic and our experience in this practice prove that planning is important because you will never know when it will be needed the most! Do not leave your children out in the cold and their fate and future in the hands of people who may not have their best interests at heart. #MakeAPlan!

This article is for information purposes only – seek the advice of your Lawyer.