John is eager to secure accommodation at university for his daughter and concludes a lease agreement for a flat near campus. Before commencement of the academic year, she has a change of heart and decides to pursue studies at a different institution. What are John’s rights?
While it happens that a contracting party’s needs may change after entering into a contract, it may be very difficult for John to resile from that commitment. The point of departure is that a party may be held to the agreement for the duration thereof, alternatively his/her request to resile therefrom (referred to as a repudiation or anticipatory breach) may be accepted by the innocent party, subject to the innocent party’s rights to claim damages as a result thereof.
The agreement itself may, in certain circumstances, come to John’s aid. This may take the form of a rouwkoop clause, or cancellation by notice; however, these “outs” are normally linked to a fee payable to the innocent party. Certain legislation, such as the CPA and NCA, has also introduced “cooling-off” periods which allow John to walk away (when applicable) within a short time after concluding the agreement. These are deemed to form part of a specific set of agreements; however, these “cooling-off” rights have very limited application and need to be considered before concluding agreements.
Whatever the reason that you may wish to get out of a contract or are faced with a situation where another party seeks to resile from a contract concluded with you, your first port of call should be to communicate with your attorney for assistance.
Contact STBB for assistance on www.stbb.co.za.