n Tydskrif vir die Suid-Afrikaanse Reg - Procurement contracts and underlying principles of the law - no special dispensation for organs of state (part 1 - the principles)

Volume 2014, Issue 2
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



Within the same legal system it is to be assumed that basic principles underlying the legal order and vouching for a peaceful ordering of the organised community should find equal application in comparable situations. To submit to the contrary view would pave the way for legal uncertainty, possible corruption and anarchy.

A legal act may be defined as an act of which the law takes cognisance in the sense that certain consequences may be attached to it. Before an agreement can be defined as a contract, it is necessary to ascertain whether the subjects presumably entering into the agreement possess the necessary legal capacity to contract. The classification of a legal subject's competence as insufficiently capacitated, serves the general public order and public interest and it is deemed beneficial for the general public interest that no intended consequences should follow from void conduct. While the law dictates that unless special circumstances prevail all majors are presumed to acquire with majority full legal capacity to partake in the legal marketplace, it follows that a presumed agreement entered into by a youngster aged fifteen to buy a motorcar will not be classified as a binding contract, because the youngster lacked the necessary legal capacity to enter into such an agreement unassisted. The presumed agreement was void because this perceived contracting party lacked the necessary legal capacity irrespective of whether the other contracting party could reasonably presume that his counterparty was lacking in legal capacity or not. If any patrimonial changes occurred due to the presumed valid contract of sale, the norms of the law of unjustified enrichment will be applied as last resort to reclaim any unjustified enrichment extant at .

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