Text book Definitions of a

Contract (1)
The Law of South Africa, vol. 5, para. 124
defines a contract as an agreement made
with the intention of creating an obligation
or obligations.

Christie, 5th ed., 2006, at p. 2 states

that a contract, in modern Roman Dutch
law of South Africa may be defined as: an
agreement (arising from either true or
quasi mutual assent) which is, or is

Text book Definitions (2)

Treitel, The Law of Contract, (9th ed.,

London, 1995) at p.1 says that a contract
is an agreement giving rise to obligations
which are enforced or recognised by law.
The Restatement of American Law,
Contracts, (2nd ed. 1981) Vol. 1, Section 1,
says that a contract is a promise or set of
promises for the breach of which the law
gives a remedy, or the performance of
which the law in some way recognises as a
duty.

Contract Law in the

classification of national
laws
A contract is private arrangement giving rise to

legal obligations.
Contract law can be classified under private law ,
although some contractual arrangements can
have public law implications or consequences.
In addition to contract law, the following areas
may also be paced under private law: law of
delict; law of property (things); law of persons;
and family law.
There are links and overlaps in some areas of
contract law, delict and property law.
A contract can give rise to obligations in delict.
In the language of property law, contracts
generally give rise to personal rights.

Contract under Private

Law
Private law

Law of delict

Contract law

Law of Property

Sources of contract law in

Botswana

Traditional sources of law: legislation, common law

and custom.
There is under-regulation of contracts through
legislation in Botswana.
There is no legislation, for example, on unfair
contract terms or on conventional penalties.
Traditional Roman-Dutch common law authorities
are inaccessible.
Almost total reliance on South African cases, and
Christie.
South African contract law initially developed in
response to peculiarly South African concerns, and
its development now is likely to be influenced by
post - apartheid constitutional dispensations.

Justifications for
recognition and
enforcement
of
contracts
Economic and moral arguments can be presented

for recognition in law or enforcement of

contractual obligations
Economic: it is commercially sound to do so.
Moral: it is the right thing to do, where contracts
are freely entered into.
The myth of freedom of contract.
Prerequisites for legal support include: intention,
capacity, formalities, certainty, legality and the
absence of other vitiating factors.
Legal support mainly through remedies for breach
of contract.
Scope of the course covers formation, contents,
breach and termination of contracts and remedies
for breach.