key to the study guide - Name

Distinction
between engagement
and other
contracts
26
(1) A contract of engagement concluded by post comes into existence at
theplacewhereandmomentwhenthepersonwhomakestheoffer
learns of the acceptance of the offer by the person to whom it was
made. In the case of business contracts, the position is different namely
the contract comes into existence at the place where and moment
when the letter of acceptance is mailed.
(2) Not everyone who otherwise has the capacity to enter into contracts in
general has the capacity to enter into a contract of engagement. Only
persons who are competent validly to marry one another can enter
into a contract of engagement with each other. It is generally accepted
that a person below the age of puberty (14 years for boys and 12 years
for girls) is incompetent to enter into an engagement. Moreover,
section 26(1) of the Marriage Act 25 of 1961 provides that a girl
under 15 years of age and a boy under 18 years of age require the
written consent of the Minister of Home Affairs in order to marry.
Where such person concludes an engagement, his or her engagement
is regarded as conditional Ð in other words, the obligation to marry
is subject to a positive suspensive condition, namely, that the
Minister's consent to the marriage be obtained. The obligations
which flow from the contract of engagement will therefore become
fully enforceable only once the Minister has granted permission in the
prescribed way. In the case of business contracts entered into by a
minor the general rule is that only the parent(s)/guardian of the minor
needs to give consent. This issue is dealt with in the module on the
law of persons.
(3) In certain circumstances, and for good reasons, an engagement may be
terminated unilaterally. The test which is applied, is what a reasonable
personwouldhavedoneinthesamecircumstances.Inthecaseof
other contracts, one party may resile (unilaterally) only if the other
commits breach of contract, and then in specific instances only, for
example if the breach of contract is of a serious nature, or if the party
has stipulated a right to resile in the contract.
(4) In the case of other contracts, and with certain exceptions, one party is
entitled to claim specific performance from the other: that is, that the
other party must do precisely what he or she undertook to do. If the
position were the same in the case of a contract of engagement it
would mean that one party would be able to force the other to marry
him or her. In South Africa it has been unlawful to force anybody to
marry since 1838.
(5) The method whereby compensation is calculated on breach of contract
of engagement (breach of promise) is different from that used in the
case of other contracts. The rule for breach of contract is that damages
are calculated in accordance with positive interest. In the case of
breach of a contract of engagement, damages are calculated in a sui
generis manner in the sense that damages are calculated in accordance
with positive and negative interest. This issue is discussed under point
5inthisstudyunit.