n South African Law Journal - What's so wrong with ? An examination of the concept of the supposition in futuro

Volume 125, Issue 2
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



When the parties to a contract base their consensus on a commonly held belief which is fundamental to their motivation in contracting, we say that they contract on the basis of a supposition. Should the supposition prove false, the contract will be void. While South African courts have accepted this proposition where the supposition relates to a past or present fact, the status of a supposition relating to the future has had a far more controversial history. The CPD accepted the validity of the supposition in futuro in , but this decision was overruled by the SCA in recent history. This article addresses the concept of a supposition relating to a future fact, in the light of the original finding in the case and the relevant case law since. The currently prevailing view is that a supposition in futuro is indistinguishable from a resolutive condition, and this article aims to reconcile this position with the finding in through the medium of equating the supposition in futuro with a tacit resolutive condition. If a supposition is merely a type of tacit term, then, asks the author, why is there so much controversy about the case?

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