These Two Types Of Contracts, Must Be Cast In Stone | Legal Articles


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These Two Types Of Contracts, Must Be Cast In Stone

In South African law, a number of contracts may be entered into verbally or in written form. It remains the choice of the parties, their requirements and what is convenient for them on whether to conclude their agreement in writing or orally. Sometimes it is about the cost as well. Legal Practitioners charge a fee to draft and facilitate the execution of a contract between the parties.

Contracts usually confer obligations on the parties concerned and, depending on the object of such contract, these obligations may sometimes be substantial financially or in some other way. At the end of the day, one will soon realize that the cost of having a Legal Practitioner assist you is far much insignificant as compared to the potential loss you might suffer in the event that your interests are not legally secure in that particular contract.

In recognition of the immediately above, the legislature promulgated the Alienation of Land Act 68 of 1981 which provides in Section 2 (1) that no alienation of immovable property will be valid unless,


  1. The deed of alienation (Offer to Purchase) is in writing;
  2. Signed by the parties;
  3. If signed by their agents, the agents must have written authority.


This is understandable because immovable property sales are usually high value transactions worth the most protection from malpractice, uncertainty and petty disputes. Therefore, a contract to alienate immovable property is an exception to contracts being executed either verbally or in writing. It always must be in writing.

The second agreement which the law prescribes must be in writing is the one of Suretyship. The General Law Amendment Act, 50 of 1956 (as amended) provides in Section 6 that:


No contract of suretyship entered into after the commencement of this Act, shall be valid, unless the terms thereof are embodied in a written document signed by or on behalf of the surety.

It goes without saying that suretyship agreements place onerous obligations on one party to cover for the potential inability of another party to fulfill their obligations. As such public policy demands that such a contract be in writing so that there is certainty, fraud prevented and disputes easily dealt with.


We assist with a wide array of contracts from Commercial Contracts, Lease Agreements as well as Offers to Purchase amongst others. Our Litigation Department is manned by lawyers who have extensive experience in Contract Law.  

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