Think You Know the Law? Here Are Some Facts That Might Surprise You

The law is often more nuanced than people think. Here are a few interesting legal facts that may surprise you.

An agreement is not always a contract

Not every agreement is legally enforceable. For an agreement to become a binding contract, the parties must intend to create legal obligations (amongst the other requirements for a valid contract).

Example: If two friends casually agree to meet for lunch, that is an agreement, but not a contract. By contrast, an agreement to sell a motor vehicle for an agreed price, with the intention that both parties are legally bound, is a contract.

Being drunk does not automatically make you liable for a motor vehicle accident

Driving under the influence of alcohol is a criminal offence. However, in a civil claim for damages, liability depends on what caused the collision.

If a drunk driver did not contribute to causing the accident, the mere fact that they were intoxicated does not reduce their claim for damages. Apportionment only applies where their own negligent conduct contributed to the accident.

A suretyship must comply with strict legal requirements

A deed of suretyship is not valid simply because someone agreed to "stand surety".

Generally, it must:

• be in writing;

• be signed by or on behalf of the surety;

• identify the creditor, the principal debtor and the surety; and

• identify the principal obligation or debt, either expressly or by clear implication.

Furthermore, a spouse married in community of property may not without the written consent of the other spouse bind themselves as surety unless the deed is entered by the spouse in the ordinary course of their profession, trade or business.

Failure to comply with these formalities may render the suretyship unenforceable.

You can be held liable for damage caused by your pet

South African law recognises the actio de pauperie, which may hold the owner of a domesticated animal liable for damage caused by the animal.

To succeed, the injured person must generally prove that:

• the defendant owned the animal at the time of the incident;

• the animal was domesticated;

• the animal acted contrary to the nature of domesticated animals generally; and

• the animal's conduct caused the loss or damage suffered.

The owner may, however, still have recognised legal defences available depending on the circumstances.

Contractual penalties can be reduced by a court

Just because a contract provides for a penalty does not mean the full amount will always be payable.

Under the Conventional Penalties Act, a court may reduce a contractual penalty if it is out of proportion to the prejudice actually suffered by the innocent party.

You cannot choose whichever court you want

Parties may agree that a particular court has jurisdiction in certain circumstances. However, they cannot, by agreement alone, confer territorial jurisdiction on a court that would not otherwise have jurisdiction.

The ordinary jurisdictional rules must still be satisfied.

Not every debt prescribes after three years

The general prescription period for most debts is three years, but there are important exceptions.

For example:

• 30 years – mortgage bond debts, judgment debts, certain tax debts and some debts owed to the State;

• 6 years – debts arising from negotiable instruments and notarial contracts; and

• 12 months – certain contribution claims under the Apportionment of Damages Act.

Never assume a claim has prescribed without obtaining legal advice.

Read more on prescription.

You cannot take the law into your own hands

Even if someone is unlawfully occupying your property, you generally cannot simply lock them out, disconnect essential services or deny them access without following the proper legal process.

Doing so may amount to unlawful spoliation, and a court can order that possession or access be restored.

A verbal contract can be binding

Many people believe that every contract must be in writing. That is incorrect.

Unless legislation requires writing (for example, the sale of land or a deed of suretyship), a verbal agreement can be just as legally enforceable as a written one - although it is usually much more difficult to prove.

Legal advice early often costs less than litigation later

Many disputes arise because legal advice was only sought after things had gone wrong. A short consultation before signing a contract or taking action can often prevent lengthy and expensive litigation later.

Understanding the law today can help you avoid costly mistakes tomorrow.

Fraser Stockley

BCom Law; LLB

Partner at Le Roux Vivier Attorneys

Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.