As a quick way of saving money, prospective business owners refrain from seeking legal assistance in the drafting of contracts by obtaining pro forma contracts from the internet or other sources. These are then edited by changing the relevant names, dates and figures. While these contracts usually contain all the relevant clauses, they aren’t tailor-made for each unique case and parties thereto frequently find that all their needs weren’t provided for in the contract. It is important to remember that a contract is drawn up for a specific purpose and when an existing contract is merely edited to apply to another agreement, without thoroughly perusing the contract, it may contain clauses which will make the application of the contract impossible and therefore nullify it.
Parties need to understand the entirety of the contract which they have signed, because, in our law, a person is considered to have full knowledge of the content of a document which he has signed and is bound by his signature. As briefly mentioned above, a contract can be altered by the parties thereto if all parties agree to the alteration. Where one or several of the parties to a contract refuse to alter it or wish to include certain clauses therein which the other parties dispute, the court needs to decide whether the contract should be altered or not. The alteration or termination of a valid contract is not genially done by our courts, because a party is legally obliged to fulfil the responsibilities which he agreed to. It should also be kept in mind that such a court process can be a lengthy and costly affair.
When a certain type of contract is concluded, there are automatically certain principles (naturalia) which will apply thereto, unless these are expressly excluded in the contract for example a property will be sold voetstoots if not indicated otherwise in the contract. Prospective parties to a contract need to be advised on all the naturalia in order to decide whether they want it excluded from their agreement or not.
It is advisory for the drafter of a contract to include a list of definitions of terms in the contract, in order to dispel confusion regarding the interpretation of the contract, should a dispute arise.