Article: parol evidence rule south africa
December 22, 2020 | Uncategorized
Parol evidence is evidence outside of the written contract – it is evidence comprising of what parties did or said before, during or even after the conclusion of the contract. The question is whether a party can alter the terms and conditions of a written contract by adducing extrinsic evidence that contradicts said agreement. May 2013 . We offer a variety of subscriptions to our Magazine, Website, PDF Reports and our photo library. In the quotation, the appellant undertook to guarantee water within 70 metres of digging and that if no water was found at this depth, the appellant would drill from 70 to 100 metres, free of charge. See also Wigmore, J.H., Evidence, 3rd ed. . However, when parties breach the contract or when the contract is terminated and loss is suffered, parties may take a better look at the terms and conditions of their signed agreement. In this post, we’ll be going through the exceptions to the parol evidence rule. The Parol Evidence Rule, Industrials, Manufacturing & Transportation. Parol evidence rule: Partial integration rule. The parol evidence rule has two components: the integration rule and the interpretation rule. Signed: _____ Gert van Tonder . One can show that the contract was subject to a suspensive condition – that is to say that the contract would only be operational on the outcome of a certain future event; if the first agreement did not yield a favourable result to enforce the second contract then parties may adduce evidence to show that fact. The respondent’s case centred on the fact that the appellant had requested a borehole with a yield of 10, 000 litres per hour and that, as the hole did not deliver such a yield, it was not obliged to pay. When faced with a situation where one party to an agreement attempts to rely on certain verbal undertakings outside the confines of the written agreement, the South African courts are guided by the parol evidence rule. Yet, despite the borehole yielding a healthy amount of water, the respondent refused to pay the appellant the agreed contract price. Please enter the email address that you used to register on Polity.org.za. Some of these exceptions follow: In terms of the interpretation rule, the court looks to ascertain the meaning of the terms. . We use cookies to improve your experience on our website. (0.047 seconds) Although at first glance it appears as though this rule is trite,… Once the quote was accepted, and work began, some water was struck just over 20 metres below the surface, but the appellant continued to drill deeper and at approximately 58 metres, a considerable amount of water was reached. The court went on further to hold that the phrase “No Water No Pay” was clearly inconsistent with the contention that a guarantee as to the minimum amount of water existed in the contract. “Interpretation is a matter of law and not a matter of fact and, accordingly, interpretation is a matter for the court and not for witnesses”.4 If the contract is able to clearly and unambiguously define the terms of the contract, the court will interpret those terms according to the contract. To access earlier articles, click Advanced Search and set an earlier date range.To search for a term containing the '&' symbol, click Advanced Search and use the 'search headings' and/or 'in first paragraph' options. Abstract. For example, clerical or typographical errors found in the written agreement may be changed because the incorrect term does not represent the true agreement between the parties. THE PAROLE PROCESS FROM A SOUTH AFRICAN PERSPECTIVE By FRANCOIS CHRISTIAAN MARTHINUS LOUW Submitted in fulfilment of the requirements for the degree of MASTER OF ARTS in the subject PENOLOGY at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROFESSOR W.F.M. (Law of Contract)The parol evidence rule encompasses those rules that regulate the admissibility of extrinsic evidence. KPMG, in the passage cited, explains that parol evidence is inadmissible to modify, vary or add to the written terms of the agreement, and that it is the role of the court, and not witnesses, to interpret a document. The parol evidence rule treats the parties’ formal written documents as if they are the reflections of their true intentions. It is at that time that parties may say that their intention prior to the signing of the agreement is not correctly represented in the agreement, and as such, parties wish to state that the contract does not truly reflect their intention. The parol evidence rule precludes proof of such prior agreement or common intention if its effect would be to vary or alter the memorial of the transaction. LL.M. The Parol Evidence Rule. The authors of one of the standard South African texts on the law of evidence, Hoffman & Zeffert, say the “the parol evidence rule . Evidence (Law) - South Africa, Contracts - South Africa Date ... (SA) v Securefin Ltd case finally brought the law applicable to the parol evidence rule in the South African law of contract on par with its American and English counterparts. However, it is frequently ignored by practitioners and seldom enforced by trial courts. Learn about our Pacific Alliance initiative. The parol evidence rule has two components: the integration rule and the interpretation rule. The parol evidence rule exists in common law for contract cases. The parol evidence rule applies to all written contracts whether it was stated in the contract or not. Written and prepared by: Kirith P. Haria One aspect of the parol evidence rule, which applies to all contracts including insurance contracts, has been abolished. Although at first glance it appears as though this rule is trite, parties often ignore it in proceedings, and rely instead on evidence which would, according to the Parol Evidence Rule, be … First, here is the list of the important exceptions under which evidence normally excluded by the parol evidence rule can be admitted: To resolve ambiguities in the contract … It bars a party to a written contract from bringing up outside evidence that illustrates an ambiguity, seeks to clarify, or adds to the written terms of the agreement. This was largely as a result of judicial influence, as most of the country’s best judges in the early years of the (then) Union of South Africa (and even before) which was established in 1910, were educated in England. To conclude, as a general rule, the parol evidence rule does not allow a party to a written contract to adduce extrinsic evidence that alters, contradicts, varies or adds to the contract. It adds, importantly, that there is no real distinction between background circumstances, and surrounding circumstances, and that a court should always consider the factual matrix in which the … Note: Search is limited to the most recent 250 articles. Second, interpretation is a matter of law and not of fact and, … By Susanna Johanna Van Breda. Nature and Contractual Obligation The purpose of a contract is to establish the agreement that the parties have made and to fix their rights and duties in accordance with that agreement. The balance will be paid on completion…Promech has a No Water, No Pay policy". shares with the Holy Roman Empire the distinction of being misleading in all three of its component parts.”The Holy Roman Empire wasn’t holy, Roman or an empire to really speak of. In this case, the appellant (Mike Ness) gave the respondent (Lourensford) a written quotation to drill a borehole for one of his Western Cape farms. A party may bring evidence if it goes to the validity of the contract – that is to say that the contract itself it not valid or is voidable; it does not go to the terms of the contract. In terms of the integration rule, the written agreement is the “exclusive memorial” of the agreement between the parties.1 The written agreement contains all the express terms of the contract and as such “the contents of the document [may not be] contradicted, altered, added to or varied by parol evidence”.2 It was recently held in the Supreme Court of Appeal (SCA) that “a court may not admit evidence as to what the parties intended it to mean if that has the effect of changing the terms of which they clearly agreed [in writing]”.3. 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