CONSTRUCTION LAW 2B
CHAPTER 5: CAPACITY TO PERFORM JURISTIC ACTS
REQUIREMENTS FOR A CONTRACT
Consensus
(Chapter 4)
Formalities, Capacity to
if any Act
(Chapter 7) (Chapter 5)
Physical Legal
Possibility Possibility
(Chapter 6) (Chapter 6)
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5.1 INTRODUCTION
Legal • Competence to have rights & duties
capacity • Every legal subject is a bearer of rights & duties
Capacity to • Capacity to perform juristic acts (legal
dealings/contracts)
act • Applicable to natural persons only
• Capacity to act may be lost or limited
Civil/Criminal • Competence to incur liability for wrongdoing
liability
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FACTORS AFFECTING NATURAL
PERSONS CAPACITY TO ACT
MENTAL
AGE MARRIAGE
DEFICIENCY
DRUGS/ALCOHOL PRODIGALS INSOLVENCY
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5.2 AGE
Your ability to form & declare a
will + appreciate consequences
of a contract
Is determined by your level of
intellectual & emotional
development
Which can be determined by
your age
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5.2 AGE
• No capacity to act.
0-7
• May not enter into any contract, even one
INFANS where there are only rights and no obligations. TAKE NOTE:
5.2.2 in your textbook is
incorrect. An infans is a child
between 0-7 whereas a minor is
• Limited capacity to act. a child between 7-18.
7 – 18
• May perform certain acts with the assistance of
MINOR a guardian.
• Children’s Act: Age of majority is 18.
18 & OLDER • Full capacity to act.
MAJOR
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5.2.1 MAJORITY
METHODS OF ATTAINING
MAJORITY
(Full capacity to act)
Marriage of a
Automatically minor
in terms of the Application to
Children’s Act: (Dissolution of the High Court
18 marriage:
Major/Minor?)
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5.2.2.2 MINOR (7-18)
oA minor has limited contractual capacity and requires the guardian’s assistance or consent.
oIf a guardian enters into a contract on behalf of the minor and the minor is unhappy with the
contract:
o The minor may apply to court within a year of reaching majority to cancel the contract.
o The minor can claim restitution
o The minor will have to prove that the contract was to his detriment at the time of conclusion of
the contract.
oA minor may conclude a contract without the assistance of a guardian where there are only
rights or benefits and no duties are incurred:
o Examples: Accept a donation, or a contract to release him from debt without counter
performance.
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5.2.2.2 MINOR (7-18)
oStatutory exceptions where a minor can act without a guardian’s assistance or
consent:
oA female minor of any age may consent to terminate a pregnancy;
oA minor of 17 years old may obtain a learner’s license;
oA minor over the age of 7 is allowed to withdraw money from their account;
oA minor over the age of 16 may make a valid will; &
oA minor over the age of 16 may make deposits and withdrawals at a bank.
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5.2.2.2 MINOR (7-18)
o Consent to marriage or engagement:
o Children below the common law age for marriage (girls: 15 and boys: 18)
may not be given out for marriage or engagement by their guardians.
o A child above the common law age must give consent to their own
marriage or engagement.
o If children under the minimum age wishes to get married, in exceptional
circumstances, they must obtain the consent of the Minister of Home
Affairs
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5.2.2.2 MINOR (7-18)
o Children over the age of 12 may consent to their own medical treatment.
o HIV tests may be performed on a child when it is in the child’s best interests:
o Consent may be given by the child if he is over the age of 12 & able to understand the
implications of the test.
o If the child is under the age of 12, the parent/guardian/care giver must consent to the
test.
o A child has the right to information regarding his health.
o Children over the age of 12 have the right to access to contraception.
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5.2.2.3 SPECIAL SITUATIONS
(a) Contracts where the guardian’s assistance is insufficient:
1. Alienation of immovable property valued at R250 000 or less:
• Consent of the Master of the High Court as well as the guardian
2. Alienation of immovable property valued at over R250 000:
• Consent of judges of the High Court as well as the guardian
The amount contained in the
textbook (R100 000) is outdated.
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5.2.2.3 SPECIAL SITUATIONS
(b) Emancipation
Minor may have the capacity to enter into certain contracts without the
assistance of a parent or guardian.
Tacit emancipation occurs where the minor is allowed to lead an
economically independent existence
Test: economically independent & allowed contractual freedom
The minor will still need to seek permission from his guardian with
regards to things outside of the scope of his emancipation:
• getting married; or
• alienating immovable property
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5.2.2.3 SPECIAL SITUATIONS
(c) Contracts where the minor concludes without the necessary
assistance, despite having limited capacity to act:
• Effect on validity: Void
• Can become valid and binding at a later stage by way of ratification by the guardian or
minor himself upon attaining majority.
• If no ratification occurs: To give consent after
• unenforceable against the minor, even when he has achieved majority the conclusion of the
juristic act
• the other party will incur liabilities towards the minor
• the minor will incur no liability towards the contracting party
• The position of a major who has already performed: no contractual remedy if the minor
does not perform. Does that amount to unjustified enrichment?
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5.2.2.3 SPECIAL SITUATIONS
(c) Contracts where the minor concludes without the
necessary assistance, despite having limited capacity to act:
Unjustified enrichment:
The minor will be liable to return such performance as long as it is in his possession
(Restitution/Restitutio in integrum):
oIf the minor had recklessly squandered the amount, he is no longer enriched,
therefore there is nothing to claim.
oIf the minor bought a luxury item, he is obligated to hand over the item, or the
value.
oIf the minor used the money to provide necessary items for which the
guardian would normally be responsible, the minor or the guardian will be
liable to pay the money back (the guardian would be enriched).
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5.2.2.3 SPECIAL SITUATIONS
(d) Fraudulent misrepresentation of majority:
If a minor, by any form of conduct, poses as a major in a fraudulent manner
and thereby induces a third party to contract
• Minor is bound by the contract as if she was a major upon conclusion
• Not entitled to restitution
• The contract is regarded as a valid contract
• The minor is liable in delict
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5.3 MARRIAGE
• Regulated by the Matrimonial Property Act
• Patrimonial consequences depends on the marital regime:
1. In community of property (ICOP) [Note: default position, therefore it applies
automatically]
2. Out of community of property (OCOP):
2.1 OCOP with accrual [Note: accrual applies automatically]
2.2 OCOP without accrual [Note: accrual must be expressly excluded in the
antenuptial contract (ANC)]
• Your marital regime determines your capacity to act.
Do not make use of abbreviations in your assessments.
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5.3 MARRIAGE
5.3.1 BEFORE 1 DECEMBER 1993:
HUSBAND HAD MARITAL POWER
o Married women had limited capacity to act.
o They were subject to the marital power of their husbands.
o As of 1 December 1993, marital power was abolished.
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5.3 MARRIAGE
5.3.2 IN COMMUNITY OF PROPERTY
• Spouses are married ICOP unless they agree otherwise.
• Patrimonial consequences:
• Joint estate:
• Undivided 50% share of the joint estate
• Includes all assets and liabilities
• Divided upon dissolution of marriage
• Each spouse has full capacity to bind the joint estate but requires consent for certain transactions.
• If one of the spouses unreasonably withholds consent, the High Court can dispense of consent.
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5.3 MARRIAGE
5.3.3 OUT OF COMMUNITY OF PROPERTY (OCOP)
• In an antenuptial contract, parties stipulate that they will be married OCOP.
Link it to Chapter 7
• This agreement is concluded prior to the marriage.
on Formalities of a
• An antenuptial contract will only be binding on third parties if it is notarially executed contract which is
& registered at the Deed’s office within three months of the marriage. prescribed by
legislation.
• Each spouse retains their own separate estate and has full capacity in respect of
their own estate.
• Spouses must make pro rata contributions to household expense.
• Marriages OCOP are subject to the accrual system, unless expressly excluded.
• Marriages concluded OCOP with and without the antenuptial contract are discussed
in the audio.
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5.4 MENTAL DEFICIENCY
Presumption: Every person is normal
Interested party makes an application to the court to
certify the person mentally deficient
Curator is appointed to administer the estate and
manage his affairs
Certification & appointment of curator has no effect
on your capacity to act
Factual test: whether the person was normal (valid)
or mentally deficient (void) when concluding the
contract (Lucid moment)
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5.4 MENTAL DEFICIENCY
Unable to understand or appreciate the nature or consequences of
his or her conduct
Unable to manage certain affairs and make rational decisions
Cannot form the necessary will to conclude a contract
Contract is void & without consequence
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5.5 INFLUENCE OF
ALCOHOL OR DRUGS
Intoxication
Prove it: Presumption that everyone has capacity to act.
Can’t appreciate nature & Can appreciate nature &
consequences of actions/ unable consequences of actions/ able to
to control actions control actions
Can’t form a will: Able to form a will:
No capacity to act Has capacity to act
Void contract Valid contract
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5.6 PRODIGALS
A person is unable
to manage his own An interested party
Court declares
affairs. approaches the High
him/her a prodigal.
Court.
(Squanders money)
Prodigal has limited
Prodigalism capacity to act: Curator is appointed
terminate when the Curator’s consent. to manage his/her
order is set aside. No consent affairs.
Voidable + Ratified.
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5.7 INSOLVENCY
When a person’s liabilities exceeds his assets, the court can sequestrate him
and declare him an insolvent.
A trustee is appointed to take control over the insolvent estate, after being
vested in the Master of the High Court.
In terms of the Insolvency Act, the insolvent has limited capacity to act
regarding the insolvent estate only and not other spheres of his/her life.
Contracts disposing of assets are void.
Contracts entered into by the insolvent, without the permission of the trustee,
which are detrimental to insolvent estate are voidable but can be ratified.
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