Tacit Agreement Contract Law

Indeed, these statutes of social justice impinge on the contractual freedom of parties which, according to common law, promotes the values and principles of social justice, within the meaning of our new legal exception under the Constitution. Inappropriate influence is also a form of inappropriate pressure on one person to induce a contract, but the pressure is more subtle because it involves, without the threat of harm, an attack on the other party`s will. Pressure usually starts from a close or fiduciary relationship in which one party abuses a higher position to influence the other. In order to impose a contract on the basis of undue influence, the party concerned must demonstrate that the other party has acquired influence over it, that that influence has weakened its resilience and made its will compliant, and that the other party has unscrupulously exploited that influence to conclude an agreement that it would not have entered into with normal freedom of will. (Some authorities also demand prejudice, but this is controversial.) The unacceptable exploitation of another`s urgency is an unwarranted influence: both have been described as an abuse of circumstances and they both render the contract cancelled. In appropriate cases, damages may also be claimed. Clearly, the boundary between these “substantive contexts” and other “circumstances” is correct. Indeed, it has been argued that the distinction between substantive and environmental circumstances is incorrect. “Perhaps, as Lewis AJA said in Van der Westhuizen v. Arnold, it is a distinction without distinction.” [137] It is clear that “substantive circumstances” are always allowed, while “circumstances” are only allowed if language treatment is unsuccessful, i.e.

where there is ambiguity. However, what divides them on the merits is not clear. The substantive circumstances are “probably important to the parties when they have entered into a contract”[120] while the circumstances have been defined as “what happened between the parties during the negotiations prior to the conclusion of the agreement”. [138] However, it is clear that “what happened between the parties in the negotiations leading up to the conclusion of the agreement” is very often “issues that are likely present for the parties when they have contracts.” In practice, it is so difficult to separate them that “no one knows exactly what the dividing line is between the two categories.” The whole procedure has been “unsinsed by inertia”[131] and the future usefulness of the distinction is called into question. The primary rights and obligations arising from a particular contract are those on which the parties have agreed expressly or implicitly, as well as those implied by the law. This runs counter to secondary rights and obligations (such as the obligation to compensate and the obligation to reinstate benefits received before the deadline) that result from an offence. It is not necessary for the parties to agree on specific rights or obligations that are not essential to their respective contracts (essentialia); All obligations relating to nature, time or place of execution are regulated and provided for by law as soon as the parties have entered into their contract (naturalia).


view more