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Article by listed attorney: Fawzia Khan         

Drafting appropriate contracts is the mainstay of many civil and commercial attorneys’ law practices. The drafter of such a contract would need to have some technical knowledge of the product or service for which the contract is being drawn. He/she must be able to draft the contract giving effect to the client’s requirements and do so without breaking any existing laws, whilst ensuring that the client’s rights and interests remain protected as much as is possible. For that reason it’s always a good idea to get the terms of a contract to be negotiated between the attorneys acting for the different parties, so as to ensure that it’s not too one sided.

Having good drafting skills for such commercial or civil contracts would therefore be considered to be important, but if there was non compliance of the law of contract , as well as all other prevailing legislation in South Africa, the contract could be rendered void and unenforceable. The Consumer Protection Act, for example makes it compulsory for a contract to be worded in plain English and be easy for a lay person to understand. A good civil or commercial law attorney should also be competent enough to navigate through a contract drawn by someone else and provide meaningful legal advice to their clients on the rights and duties flowing from the written contract.

Whilst most agreements would carry their own ‘uniqueness’, which would be understood by the contracting parties themselves, all agreements generally have a batch of terms in the agreement, which are referred as “boilerplate provisions”. More often than not these provisions are found at the end of a contract and even though they may be considered standard, their inclusion or absence from an agreement could have serious consequences for either of the contracting party. Some of the boilerplate provisions are: - 

The Non-Variation / Non Waiver Clause

This provision prevents a party from trying to change the terms of the agreement by later claiming that another oral agreement was reached between the parties.

No Representation clause

Neither party will be allowed to rely on any oral representation, which is not reduced to writing. This is an important provision and unless you can prove that a party was deliberately misleading, you will be bound by this provision.

The Breach clause

This defines what happens in the event of a breach committed by the defaulting party as well as the rights of the aggrieved party. It will also set out the nature and extent of damages, which would be claimed from such breach.

The Domicilium Citandi Et Executandi clause

This provides the address of the parties and sets out where and how service and delivery of any document between the parties will be conducted.


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