Where an agreement was purportedly entered into with a trust where one of two required trustees did not sign and in fact refused to do so, the agreement was void and there was no basis for an action compelling the sale to the trustee who did sign to buy the property. A signatory who warrants their authority may be sued for damages but the damages are not always easy to prove.

The seller tried to enforce the sale against the trustee who had signed on the basis of a legal argument of which the court said ‘the ingenuity of this argument is surpassed only by its lack of substance’.

Where a contract of sale of a marketable commodity or land is breached by non-performance, the extent of the innocent party’s loss is generally established by measuring the difference between the price sold and the market value or some other proven method of showing that damages were suffered. In this case the defendant had not proved any damages and the entire claim was dismissed.

The most surprising thing about this case is that it got to the Supreme Court of Appeal at all. It is a good reminder that if you are selling to a trust, it is a sale to the individual trustees and all the trustees required to sign by the trust deed must do so or the transaction is void.

The case is Goldex 16 (Pty) Ltd v Capper NO & others.