ENSafrica’s candidate legal practitioner Sesethu Zingelwa writes:
You may be wondering whether someone’s word is really ‘their bond’ when it comes to matters of a verbal agreement with someone.
According to South African law, verbal contracts are as legally binding and enforceable as written contracts. Unfortunately, they are often difficult to prove since they do not leave a paper trail behind.
It is worth noting that contracts such as antenuptial contracts, contracts of sale of land and suretyship agreements are regulated by statutes prescribing certain formalities which must be adhered to. Such contracts are required to be in writing and signed by the parties to make them valid and enforceable.
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The lack of proof in verbal contracts causes disputes in respect of the actual terms and conditions between the parties. Tacit terms are read into a contract to fill the gaps that the parties did not expressly agree on.
They come as a result of the parties actual or imputed common intention. On the other hand, implied terms are incorporated into the contract as a result of the operation of a legal rule.
They automatically form part of the contract even if the parties did not agree to them. However, parties may change or exclude an implied term from their contract by express agreement.
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When a claim for breach has been made, some form of proof may be considered by the court to prove the existence of a verbal contract. This proof can be in the form of a recording, notes from a conversation, witnesses, electronic communication and proof of payment.
In the event of a breach of contract, specific performance, cancellation and damages can be claimed as common remedies. To get the other party to deliver the performance as agreed to in the contract, the primary (default) remedy is specific performance. Cancellation is aimed at the termination of the consequences of a validly concluded contract.
As a general rule, cancellation means that the obligations under the contract are extinguished after the date of cancellation. Lastly, an innocent party can claim damages for losses suffered as a result of the breach.
Contractual damages can be claimed on their own. However, damages are usually claimed together with either cancellation and/or specific performance.
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