Inferred Waiver And The Test Applied Under A Sale Agreement

• Published date: 01 June 2021
• Subject Matter: Corporate/Commercial Law, Corporate and Company Law
• Law Firm: Andersen
• Author: Mr John Mankoe and Christopher Majuru

A recent judgment by the High Court in the Northern Cape, Robertson v Fourie [2021] ZANCHC 15, dealt with the issue of waiver in terms of an oral agreement of sale ("Sale Agreement"). The Sale Agreement was entered into between two parties for two Tsessebe cows, both of which were pregnant and in good condition. A brief background of the matter is set out below.

Robertson approached Fourie, a livestock agent, to procure and deliver two certified pregnant Tsessebe cows. Fourie found a seller, Gers, and proceeded to negotiate a purchase price of R80 000 per cow. Payment was to be made by Robertson in three instalments, namely, R91 200 within a few days of delivery and R20 000 deposit on the second cow. The balance of the purchase price would be paid by Roberston at a later stage.

In concluding the Sale Agreement, the parties arrived at Gers' farm for the purpose of certifying the cows as pregnant and ensuring that they were in good condition. To achieve the certification, a veterinarian appointed for this purpose proceeded to anaesthetise the two cows and load them onto Robertson's vehicle. The last step to verify whether the cows were indeed pregnant was to use a scanner, however, the veterinarian realised at that stage that she did not have one in her immediate possession.

Robertson insisted that he wanted the cows certified pregnant and Gers suggested to him that he did not have to take the animals back to his farm. The veterinarian examined the cows and found them healthy. Based on this finding, both Robertson and Gers surmised that in all probability the cows were indeed pregnant given, amongst other things, the time of year. The verification therefore did not take place and consequently a term of the Sale Agreement could not be performed.

The cows were then provided with an antidote and loaded onto Robertson's vehicle to transfer them to his farm. Robertson made the two payments as per the Sale Agreement, however he failed to pay the balance of the purchase price. His reasons for failing to pay the balance were that one of the cows had died on the farm and the other had failed to calve.

The dispute regarding the Sale Agreement was brought before the magistrate court and the court a quo found that Robertson had waived the requirement of pregnancy. The matter was taken on appeal and the dispute the court had to resolve was whether to uphold the decision of the court a quo or to set it aside.

In making its finding, the court discussed the principles of...