Tag archives: Drafting

Interpreting insurance policies (UK)

By Patrick Bracher (ZA) on March 26, 2018 Posted in Insurance

A recent UK decision made some interesting remarks regarding the interpretation of an insurance policy which should be no different in South Africa: The wording of the schedule and the policy wording must be considered together without giving greater weight to either. The fact that clearer words could have been used does not mean that … Continue reading

Force majeure clauses – a ‘Day Zero’ respite

By Caleb Jones on March 6, 2018 Posted in General

Property developers are not immune to the water restrictions being imposed by the City of Cape Town and, in terms of the recently published Level 6 water restrictions, have had to reduce their monthly consumption of municipal drinking water by 45% from 1 February 2018. With day zero looming, contractors need to be aware of … Continue reading

Public holidays are not bank holidays

By Patrick Bracher (ZA) on October 25, 2016 Posted in Drafting tips

The definition of ‘business day’ in South African agreements often includes phrases like ‘any day on which banks are open for business in South Africa’. These words are confusing and it is sufficient to refer to a day other than a Saturday, Sunday or official public holiday. The words have crept in from English law … Continue reading

Drafting tips: How not to draft an arbitration clause

By Patrick Bracher (ZA) on September 23, 2014 Posted in Drafting tips

In a UK case, the contract included a provision that “the parties will endeavour to first resolve the matter through Swiss arbitration. Should a resolution not be forthcoming the courts of England will have non-exclusive jurisdiction”. It was held that this is not an arbitration agreement. The parties did not specifically agree to refer the … Continue reading

Drafting tip: “any” v “in accordance with”

By Patrick Bracher (ZA) on September 2, 2014 Posted in Drafting tips

A statute referred to termination of service “in accordance with any applicable regulations”. It was held in Minister of Defence v SANDU that if there are no applicable regulations then there are simply no regulations that the functionary needs to follow. It does not mean that nothing can be done at all. It would be … Continue reading

Insurance Council of Australia code in plain language

By Patrick Bracher (ZA) on August 11, 2014 Posted in Insurance

The Insurance Council of Australia has published a revised General Insurance Code of Practice. It contains nothing unique or startling but it will give insurers some good ideas, written in plain language, about things you might want to incorporate in your own Treating Customers Fairly philosophy.… Continue reading

Interpretation of clumsy laws

By Patrick Bracher (ZA) on August 7, 2014 Posted in Drafting tips

Clumsy laws must be constructively dealt with. Even where laws are clumsily and inelegantly drafted, the courts should be slow to alter the words actually used. In Kalil v Mangaung Metropolitan Municipality the court said that it must guard against the temptation to substitute what the court regards as reasonable, sensible or businesslike for the words … Continue reading

A clear offer and unconditional acceptance is necessary to make a contract

By Patrick Bracher (ZA) on July 31, 2014 Posted in Drafting tips

Acceptance must correspond with the offer in all material respects. When parties are negotiating a contract, an offer made by one party lapses if it is rejected by the other party. If the offeree makes a counteroffer, that amounts to a rejection of the original offer. A binding contract can only be brought about by … Continue reading

Drafting tip: A ‘no prior representation’ clause ineffective if there is no consensus

By Patrick Bracher (ZA) on July 21, 2014 Posted in Drafting tips

An innocent misrepresentation which results in the parties concluding an agreement they never intended to conclude means that the agreement fails even if there is a clause in the document that the property is sold as is (voetstoots) and that the purchaser has not been induced to enter into the agreement on the basis of … Continue reading

Drafting tip: Dictionary meaning must be read in context

By Patrick Bracher (ZA) on June 24, 2014 Posted in Drafting tips

The court had to decide the meaning of the phrase “floor covering” to determine what customs tariff applied to Terratile pitch protection tiles which are placed on top of sports fields when other events such as concerts are held in the stadium. The customs tariff item is “floor coverings of plastics, whether or not self-adhesive, … Continue reading

Don’t allow arbitrators to make the contract

By Patrick Bracher (ZA) on June 4, 2014 Posted in Drafting tips

An arbitration clause should never be drawn so broadly that the arbitrator determines the wording of the contract. Arbitrators should be asked to interpret contracts and not make them for the parties. The consequences of such a broad arbitration clause could be that the arbitrator imposes contract terms on the parties which they would never … Continue reading

Contracting parties may not be bound if conditions precedent are not fulfilled

By Fabio Miceli on April 3, 2014 Posted in Drafting tips

The courts have reaffirmed that if suspensive conditions in an agreement are not fulfilled timeously the agreement will not be binding on the parties. This is not cured by either party performing in terms of the agreement. Suspensive conditions and how they must be fulfilled must be precisely and carefully drafted. Facts of the case … Continue reading

Drafting tips: vague contracts

By Patrick Bracher (ZA) on March 27, 2014 Posted in Drafting tips

When ascertaining the meaning of a contract, a court will first have regard to its wording. The wording must be considered in the context or factual matrix in which the contract was concluded. That is so even if, on the face of it, the words are clear. Where the words are ambiguous or lack clarity, … Continue reading

Drafting tip: What does “after consultation with” mean?

By Patrick Bracher (ZA) on March 12, 2014 Posted in Drafting tips

Where a decision must be taken “after consultation with” someone else, prior consultation is necessary but it remains the consulting party’s decision. Only consultation is required. Consensus or agreement is not required. You have to consult in good faith before taking the decision.… Continue reading

Interpreting a proviso

By Patrick Bracher (ZA) on February 21, 2014 Posted in Drafting tips

When you use the phrase “provided that” remember that what follows qualifies what goes before it. It is not read as a separate provision in its own right.… Continue reading

Arbitration: You get what you ask for

By Patrick Bracher (ZA) on February 13, 2014 Posted in Drafting tips

If you choose an informal arbitration you will usually have to accept the outcome whether you like it or not. In Reward Ventures 01 CC v Walker the arbitration agreement provided that the arbitration must be held “in a summary manner … on the basis that it shall not be necessary to observe or carry out … Continue reading

Golden rule of interpretation – Good riddance

By Patrick Bracher (ZA) on February 5, 2014 Posted in Drafting tips

This is how you interpret a contract: The starting point is the words of the contract. You consider the perceived literal meaning of the words in the light of the context, including the circumstances in which the document came into being. This includes the background to the agreement and the surrounding circumstances when it was entered … Continue reading

Use no-cession clauses – they outlive liquidation

By Patrick Bracher (ZA) on February 3, 2014 Posted in Drafting tips

There are good reasons for putting a ‘no-cession’ clause in a contract. For one, it is binding on a trustee or liquidator of the insolvent creditor. Personal rights can be ceded All personal rights can be freely ceded unless they are of a personal nature where a particular person is expected to perform the obligations … Continue reading

“He” does not mean “she” before a commissioner of oaths

By Donald Dinnie on February 1, 2014 Posted in Drafting tips

The attestation at the end of an affidavit is not a formality. It is a serious part of every affidavit and must be carefully checked for correctness every time. A female witness in court proceedings signed an affidavit in the presence of a commissioner of oaths but the commissioner of oaths certified in the standard … Continue reading

An arbitration clause may die with the contract

By Patrick Bracher (ZA) on January 24, 2014 Posted in Drafting tips

A clause in a contract requiring the parties to refer their disputes to arbitration is not necessarily enforceable if the contract itself is invalid. Every arbitration clause should be coupled with a provision that the validity of the agreement may be determined by arbitration even though the existence of the agreement itself is being questioned. … Continue reading

Definitions in context

By Aneesa Bodiat on January 21, 2014 Posted in Drafting tips

Most definition clauses do (and should) start with the words “subject to the context” and these words are important when applying a definition. The supreme court of appeal said that definitions in an enactment (in this case a by-law) should not be slavishly applied. Where the context requires it, the ordinary meaning of a word … Continue reading

There are very limited grounds to set aside an arbitration award

By Patrick Bracher (ZA) on January 7, 2014 Posted in Drafting tips

When you agree to an arbitration clause in an agreement bear in mind that the arbitration award, whether you like it or not, is likely to be the final word. The guiding principle of an agreed arbitration is finality – right or wrong. The arbitration agreement must provide for the right of appeal if the … Continue reading