A Better Explanation of the Essentialia, Naturalia and Incidentalia of a Contract
By Jayde Fryer
Essentialia: Distinguish a contract as a particular type of contract and give the contract its identity. It is important to know what the elements of a particular type of contract are in order to identify an essentialia
Example: If X and Y decide that Y will buy X’s Company Law Manual, the book will belong to Y once he/she receives it (contract of sale). The essentialia of a contract of sale are “the intention of the parties to purchase and sell, certainty regarding the object sold and lastly certainty regarding the purchase price”.
What would the position be in the case of a credit agreement, a contract of letting and hiring etc?
Naturalia: After the type of contract has been agreed upon, there are a number of ‘natural’ provisions which flow automatically from the type of contract as a result of the law, and the parties do not need to agree expressly on these terms for them to exist.
The purpose is to remove the duplication of unnecessary terms in a contract to which the parties already agree to in that particular type of contract, like who will be the owner after the transaction has taken place.
One need not even be aware of the naturalia that are applicable in order for them to apply. If the specifics of a contract are not agreed upon, then the naturalia of law apply to the contract without the parties having to expressly state so in order to provide for those particulars.
Example: The naturalia of a contract of sale are that the buyer must pay and the seller must deliver (the rights and duties determined by the naturalia of a contract), and that the seller gives an implied warranty against latent defects (an assurance that need not be expressly mentioned in the contract that the goods are free of defects which the buyer would not be able to notice upon reasonable inspection of the goods).
Incidentalia: “The provisions are incidental to the specific contract between the parties” Those naturalia that may be changed expressly or tacitly by agreement are called incidentalia as they are incidental to the agreement, those that are agreed upon and are unique to any given contract, the additional terms, and can limit or change some of the naturalia
Example: The implied warranty against latent defects as mentioned under naturalia may be expressly excluded from a contract by including a “voetstoots” clause which commits that there is no assurance against any latent defects in the product and it is being sold “as is”. Another example is to agree in a contract of sale that the purchase price may be paid in instalments, or on a particular day at a particular time etc.
Jayde Fryer LLB (UJ) is an attorney at J. J. Fryer Attorney in Gauteng
2 May 2014
Bibliography
Kleyn, D and Viljoen, F “Beginners Guide for Law Students” (Juta Law) Third Edition 2002
Seven Eleven Corporation of SA (Pty) Ltd v Cancun Trading No 150 CC (108/2004) [2005] ZASCA 17; [2005] 2 All SA 256 (SCA) (24 March 2005)
South African Maritime Safety Authority v McKenzie (017/09) [2010] ZASCA 2; 2010 (3) SA 601 (SCA) ; [2010] 3 All SA 1 (SCA) ; (2010) 31 ILJ 529 (SCA) ; [2010] 5 BLLR 488 (SCA) (15 February 2010)
Nagel, CJ (Ed) “Commercial Law” (LexisNexis) Third Edition 2006
BMH Law 