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''Kragga Kamma Estates CC and Another v Flanagan''〔1995 (2) SA 367 (A).〕〔Case No. 720/93.〕 is an important case in the South African law of contract, an appeal from a decision in the South Eastern Cape Local Division by Jansen J. It was heard in the Appellate Division on August 19, 1994, with judgement handed down on September 29. The presiding officers were EM Grosskopf JA, Nestadt JA, Kumleben JA, Howie JA and Nicholas AJA. The appellants' attorneys were Tobie Oosthuizen, Port Elizabeth, and Webbers, Bloemfontein. The respondent's attorneys were Jankelowitz, Kerbel & Schärges, Port Elizabeth, and Lovius-Block, Bloemfontein. HJ van der Linde (with him MPQ Spruyt) appeared for the appellants; JRG Buchanan SC for the respondent. The case concerned, in the first place, the remedy of repudiation for breach of contract. The purchaser had failed to pay a portion of the purchase price in terms of the deed of sale. The seller alleged that such non-payment constituted repudiation, accepted by the seller. Failure to pay obviously constituted breach of contract in light of the requirement in the contract in question that payment be made on signature of the agreement. The court assumed such breach to constitute repudiation. The seller, however, only purported to cancel the contract more than two years after the conclusion of the agreement, and after having accepted monthly payments on the balance of the purchase price. In such circumstances, the seller was not summarily entitled to accept repudiation and cancel the contract. In the second place, the case concerned the question of when a party is or is not in ''mora'', specifically ''mora ex persona''. The demand for payment was contained in the pleadings in the case. This, the court found, amounted to ''interpellatio iudicialis'' and was not ''per se'' impermissible. The demand, however, specified that payment was to be made "within a reasonable period of time," and was preceded by words "in the event that the () Court should find that the () intended to sell the property to the ()." Such a demand, being subject to an uncertain future event, was plainly conditional and not capable of placing the purchaser in ''mora''. == Fact == The respondent, initially the plaintiff, had sold and caused to be transferred certain fixed property to the first appellant, which had been the first defendant, and was a close corporation. The second appellant (the second defendant) was one of the members of the first defendant. The plaintiff instituted an action in a Local Division claiming re-transfer. The claim was upheld on the ground that the plaintiff had subsequently cancelled the sale. The agreement of sale, which was entered into in April 1991, provided for a purchase price of R120,000, payable as to R70,000 "on signature hereof," and as to the balance of R50,000 at a rate of R500 per month. Although the plaintiff's claim was initially based on an alleged misrepresentation by the second defendant, the plaintiff had, during the course of the trial, several times amended her particulars of claim, eventually claiming re-transfer only on the following bases: # that the first defendant had repudiated the contract by refusing to pay the amount of R70,000, and that the plaintiff had accepted such repudiation;〔Para 7.7 of the plaintiff's particulars of claim, as amended in terms of notice of motion dated May 6, 1993.〕 and # that the plaintiff had cancelled the agreement as a consequence of the first defendant's failure to pay the R70,000.〔Para 7.8 of the plaintiff's particulars of claim, as amended in terms of notices of intention to amend dated May 6, 1993 and October 11, 1993. A second notice of intention, dated September 30, 1993, was not granted.〕 In its final form, paragraph 7.8 of the particulars stated that the cancellation was effected by the notice of September 30, and by way of a letter addressed to the first defendant's attorneys, dated October 5, 1993, despite demand having been made upon the first defendant by way of the notice of intention to amend of May 6, 1993, and despite the lapse of a reasonable time. The plaintiff also tendered repayment of the monthly payments of R500. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Kragga Kamma Estates v Flanagan」の詳細全文を読む スポンサード リンク
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