Chapter 16

Question 1

Demand Performance

Answer 1

1) Identify the contract.
2) Identify the performance due.
3) Set time for the performance (must be reasonable).
4) Warn that failure will result in a breach of contract

Question 2

Template of Breach of Contract

Answer 2

1) For the purposes of this Agreement, a breach shall occur if either party fails to perform any material obligation required under this Agreement.

1.2) Upon the occurrence of a breach, the non-breaching party shall provide written notice to the breaching party specifying the
nature of the breach and the required remedial action.

1.3) The breaching party shall have fourteen days from the date of
receipt of the notice to correct the breach to the satisfaction of the non-breaching party.

1.4) If the breach is not corrected within the specified period, the
non-breaching party shall be entitled to, without prejudice to
other rights in terms of this agreement or law, to –

a) Claim specific performance in terms of the agreement as
well as damages potentially suffered,

b) Cancel this agreement and claim damages, or

c) Keep this agreement in force and claim damages as suffered
as a result of the breach

Question 2

Notice of demand – warning for cancellation:

Answer 2

1) Identify the contract.
2) Identify the performance.
3) Identify the breach.
4) Set time for remediation of the breach (must be reasonable).
5) Warn that failure will result in a right to cancellation (or that contract will be seen as cancelled).

Question 3

Notice of Cancellation:

Answer 3

1) Identify the contract.
2) Identify the performance that was due.
3) State the breach that occurred.
4) Identify the source of the right of cancellation.
5) Inform that the contract has been/is now cancelled.

Question 4

Right to cancel

Answer 4

1) If any party breaches the Agreement, the other party will be
entitled to cancel the Agreement immediately and to claim full
restitution.
OR

2.1 If any party breaches the Agreement, the other party shall givethe former written notice of the breach and afford the breaching party 14 (fourteen) days to remedy the breach. When the breach
is not remedied, the party prejudiced by the breach may cancel the Agreement immediately

Question 5

Warranty Clause

Answer 5

1) The Seller warrants that the goods/services provided under this
Agreement shall conform to the specifications set forth in
Annexure A.

Question 6

Guarantee Clause

Answer 6

1) The Seller guarantees that the goods/services shall be free from
defects in materials and workmanship for a period of [specify period] from the date of delivery.

Question 7

Exemption Clause:

Answer 7

1) Notwithstanding the foregoing, the Seller shall not be liable for any defects arising from:

a) Normal wear and tear;

b) Misuse or improper handling by the Buyer;

c) Modifications made without the Seller’s approval.

Question 8

Non-Variation Clause:

Answer 8

1) No variation, modification, or waiver of any provision of this
Agreement shall be valid unless in writing and signed by both parties.

2) Any variation agreed upon shall be in the form of a written amendment to this Agreement and shall be signed by authorised representatives of both parties

Question 9

Force Majeure Clause:

Answer 9

1) For the purposes of this Agreement, a force majeure event shall include, but not be limited to, acts of God, war, terrorism,
labour strikes, and any other event beyond the reasonable control of the affected party.

2) The affected party shall notify the other party in writing as soon as practicable of the occurrence of a force majeure event and its
expected duration.

3) During the continuance of a force majeure event:

a) The affected party shall be excused from performing its obligations under this Agreement to the extent that performance is prevented by the force majeure event

b) The time for performance shall be extended for the duration
of the force majeure event