RECTIFICATION OF A SALE CONTRACT WITH A NON-VARIATION CLAUSE

Most, if not all, deeds of sale contain a non-variation clause, reading more or less as follows:

"No agreement varying, adding to, deleting from or cancelling this agreement shall be effective unless reduced to writing and by or on behalf of the parties."

In the recent judgement of Jacobs v Southey and Others (724/14)[2015] ZANCHC 12 (copy of case attached for ease of reference) it was held that a contract of sale will not be void where an oral agreement varying such agreement, notwithstanding the non-variation clause, was consistent with the conduct of both parties.

This judgement must not be seen as a carte blanche to orally vary the terms of all contracts.  Each rectification will have to be judged on its own merits.

Our courts have held that where both parties to a written agreement were under a misapprehension when they signed the contract, for example that a condition formed part of the written contract whilst it was not included in the written record, a non-variation clause does not exclude a defendant's right to rectify the contract in the event of a mutual error.

The object of rectification is to have a written contract conform to the common intention of the parties.  The result aimed for is to reproduce in writing the real agreement between the parties.