Abstract:
It is a trite principle of the law of contract that a condition is an uncertain future
event upon which either the commencement of the duty to perform or the contract’s
continued existence is made dependent. The effect of a suspensive condition
can be summarised as follows (see Otto and Prozesky-Kuschke “General
principles of the law of contract” in Nagel (ed) Commercial law (2011)
114–115): A condition is suspensive when the right or duty to performance in
terms of a contract is suspended or postponed pending (and thus made dependent
upon) the occurrence or non-occurrence of an uncertain future event specified in
the contract. Pending the fulfilment of the condition, a contractual relationship
indeed exists between the parties. One of the consequences of the existence of a
contractual relationship is that neither party can withdraw from the contract and
that any additional duty must be performed. Upon fulfilment of the condition, the
parties are entitled to performance and obliged to perform. Before fulfilment,
performance may not be claimed. If the condition is not fulfilled, the contract is
terminated and neither party has to perform. In addition, either party is entitled to
the return of anything already performed (see also Hutchison and Pretorius (eds)
The law of contract in South Africa (2009) 247–248; Van der Merwe et al Contract
general principles (2007) 289–293; Van Rensburg et al “Contract” 5(1)
LAWSA (2004) paras 436–437; Kerr The Principles of the law of contract (2002)
446–449 and Christie The law of contract in South Africa (2011) 145 and authorities
cited).
