Hansen, Schrader & Co. v De Gasperi
Encyclopedia
Hansen, Schrader & Co. v De Gasperi is an important case in South African contract law
. It was heard by Solomon J in the Witwatersrand
High Court from April 15 to 16, 1903
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. "The primary purpose of the interpretation of a contract," writes Catherine Maxwell, "is to give effect to the intentions of the parties." The primary rule, therefore, is that effect must be given to the parties' common intention: that is, to what both of them intended on entering into the contract. As Innes J put it in Joubert v Enslin
, "The golden rule applicable to the interpretation of all contracts is to ascertain and to follow the intention of the parties."
There is a paradox, however, in that the subjective intentions of the parties must be established with reference to certain objective factors, the most obvious being the words printed on the contract. As Solomon puts it in his judgment,
In determining the common intention of the parties, then, the courts must consider first the literal and ordinary meaning of the words in the contract. Hence Innes J continues, in Joubert v Enslin, "If the contract itself, or any evidence admissible under the circumstances, affords a definite indication of the meaning of the contracting parties, then it seems to me that a court should always give effect to that meaning."
The Court in Hansen was not concerned, per se, with determining exactly the intention of the parties; its goal was to determine whether or not that intention was clearly reflected in the contractual document, from the literal and ordinary meaning of the language.
South African contract law
South African contract law is "essentially a modernised version of the Roman-Dutch law of contract," which is itself rooted in Roman law. In the broadest definition, a contract is an agreement entered into by two or more parties with the serious intention of creating a legal obligation...
. It was heard by Solomon J in the Witwatersrand
Witwatersrand
The Witwatersrand is a low, sedimentary range of hills, at an elevation of 1700–1800 metres above sea-level, which runs in an east-west direction through Gauteng in South Africa. The word in Afrikaans means "the ridge of white waters". Geologically it is complex, but the principal formations...
High Court from April 15 to 16, 1903
1903 in South Africa
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Contractual interpretation
The case is important primarily for its influence on the interpretation of contracts in South AfricaSouth Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
. "The primary purpose of the interpretation of a contract," writes Catherine Maxwell, "is to give effect to the intentions of the parties." The primary rule, therefore, is that effect must be given to the parties' common intention: that is, to what both of them intended on entering into the contract. As Innes J put it in Joubert v Enslin
Joubert v Enslin
Joubert v Enslin is an important case in South African contract law, heard in the Cape Town Appellate Division on July 8, 9 and 22, 1910.- Golden rule of interpretation :...
, "The golden rule applicable to the interpretation of all contracts is to ascertain and to follow the intention of the parties."
There is a paradox, however, in that the subjective intentions of the parties must be established with reference to certain objective factors, the most obvious being the words printed on the contract. As Solomon puts it in his judgment,
It is not for this Court to speculate as to what the intentions of the parties were when they entered into the contract. That must be gathered from their language, and it is the duty of the Court as far as possible to give to the language used by the parties its ordinary grammatical meaning.
In determining the common intention of the parties, then, the courts must consider first the literal and ordinary meaning of the words in the contract. Hence Innes J continues, in Joubert v Enslin, "If the contract itself, or any evidence admissible under the circumstances, affords a definite indication of the meaning of the contracting parties, then it seems to me that a court should always give effect to that meaning."
The Court in Hansen was not concerned, per se, with determining exactly the intention of the parties; its goal was to determine whether or not that intention was clearly reflected in the contractual document, from the literal and ordinary meaning of the language.
Books
- Du Plessis, Jacques, et al. The Law of Contract in South Africa. Edited by Dale Hutchison, Chris-James Pretorius, Mark Townsend and Helena Janisch. Cape TownCape TownCape Town is the second-most populous city in South Africa, and the provincial capital and primate city of the Western Cape. As the seat of the National Parliament, it is also the legislative capital of the country. It forms part of the City of Cape Town metropolitan municipality...
, Western CapeWestern CapeThe Western Cape is a province in the south west of South Africa. The capital is Cape Town. Prior to 1994, the region that now forms the Western Cape was part of the much larger Cape Province...
: Oxford University PressOxford University PressOxford University Press is the largest university press in the world. It is a department of the University of Oxford and is governed by a group of 15 academics appointed by the Vice-Chancellor known as the Delegates of the Press. They are headed by the Secretary to the Delegates, who serves as...
, 20102010 in literatureThe year 2010 in literature involved some significant events and new books.-Events:*February - The Wheeler Centre, Australia's "literary hub", officially opened.*April 3 - First release of the Apple iPad, electronic book reading device....
. - Lubbe, GF, and CM Murray. Farlam and Hathaway Contract: Cases, Materials and Commentary. 3rd Edition. Lubbe & Murray, 1988.
Cases
- Coopers & Lybrand and Others v Bryant 1995 (3) SA 761 (AD) at 767E.
- Hansen, Schrader & Co. v De Gasperi 1903 TH 100.
- Joubert v EnslinJoubert v EnslinJoubert v Enslin is an important case in South African contract law, heard in the Cape Town Appellate Division on July 8, 9 and 22, 1910.- Golden rule of interpretation :...
1910 AD 6. - Rand Rietfontein Estates Ltd v Cohn 1937 A.D. 317 at 325.
- Saambou-Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A).