Suspensive conditions in an agreement of sale of immovable property are clauses that suspend the operation of the contract until a specified condition is fulfilled. Common examples include the purchaser obtaining a mortgage bond or the sale of the purchaser’s existing property. If the condition is not fulfilled within the stipulated time, the contract typically lapses and is deemed void.
However, the concept of fictional fulfilment introduces a notable exception. Under certain circumstances, if a party deliberately disturbs the fulfilment of a suspensive condition, the law may deem the condition to have been fulfilled, even though it was not met in reality.
What Is Fictional Fulfilment?
Fictional fulfilment arises when one party has a duty, either expressly or implied, to take reasonable steps to ensure that the suspensive condition is met, but acts in bad faith or intentionally obstructs the process. In such cases, the law prevents that party from benefiting from their own wrongful conduct by treating the condition as if it had been fulfilled.
Application in Sale of Immovable Property
In the context of an agreement of sale for immovable property, fictional fulfilment typically comes into play where the purchaser or seller fails to perform an obligation necessary to fulfil the suspensive condition. In example, if a sale is subject to the purchaser obtaining a bond within 30 days, and the purchaser deliberately avoids applying for the bond, the seller may invoke fictional fulfilment. The buyer cannot rely on the failure of the condition to escape the contract, since they actively prevented its fulfilment.
There are legal requirements to rely on fictional fulfilment and the following must generally be shown:
- The condition was suspensive
- There was a legal or contractual duty on the party to take reasonable steps to fulfil it.
- The party acted in bad faith or failed to take the necessary steps.
- The non-fulfilment was due to the party’s own conduct.
If proven, the court may deem the condition fulfilled to prevent unfairness and enforce the contract.
Fictional fulfilment protects parties against manipulation or abuse of suspensive conditions. It encourages good faith and cooperation between contracting parties.
For purchasers, sellers, and estate agents, it is crucial to understand this principle to avoid unintended consequences. Parties must act diligently and honestly to fulfil their contractual obligations, or risk the law treating their obstruction as fulfilment.
Article by: LORANDI VAN DER MERWE (LLB) Conveyancer
For more information contact Lorandi at 044 6019900 or lorandi@rgprok.com.
www.rauchgertenbach.com .
