Question 3

Identify the form of breach of contract that appears in the following scenarios and justify what the most appropriate remedy would be in each instance.

NOTE: You will not be awarded marks for simply stating all remedies under each question. You are required to select the most appropriate remedy in the situation, whether it is an agreed remedy or a common law remedy. You are required to explain why the remedy that you have chosen is the most appropriate in the situation. Also there are only 5 types of breach of contracts to choose from for each scenario below which are as follows:

• Breach due to Impossibility
• Breach due to Repudiation
• Breach due to Malperformance
• Breach due to Delay in performance by the debtor
• Breach due to Delay in performance by the creditor

Q.3.1 Tim advertises his flat for rental. John sees the advert and immediately phones Tim to view the flat. When they meet at the flat the following day, John agrees to lease the flat. Tim presents him with a written lease agreement, which John signs without reading it because he is late for a meeting. A month after moving into the flat, John discovers that the agreement states that he is responsible to pay the municipal water bill, which is charged according to the amount of water used. John refuses and deducts the water bill from the rent saying that he would never have agreed to rent the flat had he known about this clause because he thought that the water was included in the rental.

Q.3.2 Tim is leasing out another flat that he owns to Sheila for R4000 per month, payable in cash on the first business day of each successive month. The written lease agreement states that Tim may cancel the contract if payment does not take place on the due date. Sheila is at least a week late in paying the rental over a period of 5 months.

Q.3.3 There is a clause in Demi's lease agreement which states that her townhouse is to be occupied by a maximum of two persons. She allows her brother and his wife, together with their three children (two in high school and one at university) to move into her townhouse while she is overseas for three months.

Q.3.4 David is the manager of Hotel 323. He orders and pays for 300 personalised tablecloths and serviettes for the hotel restaurant. The parties agree that Gregory will deliver the items on Tuesday at 16h20. Gregory arrives at the hotel but when David inspects the crockery, he discovers that they only amount to 230. Some of the serviettes are plain and do not have the hotel logo on them as requested.

Q.3.5 David purchases vegetables from the local fruit and vegetable shop. David was supposed to receive delivery of the order at 16h30 but Denver, the driver, skips a red robot while speaking to his girlfriend on the phone. He causes an accident and is then unable to deliver the goods as they are either squashed to a pulp in the accident or have been looted by members of the surrounding community.

Q.3.6 Celeste owns a small rose farm and supplies florists in the surrounding area. Lebo places an order with Celeste for the purchase of 100 roses that she is supplying to someone for a function. The day before the function, Lebo visits the rose farm and picks out the 100 roses that she likes and pays for them (R3 per rose). Celeste marks the roses clearly, so that they might be delivered to the venue the next day. However, that night, a goat jumps over the fence and eats most of the roses in the rose beds, including Lebo's roses. In the morning, Celeste phones Lebo and says that she is sorry, but she can only deliver another 100 roses to the venue if Lebo pays for another 100 roses. Lebo is furious