Suspensive conditions in contracts of sale of immovable property

When a contract is subject to a suspensive condition, the contract comes into effect only if the condition is met. On a practical level, this can entail a future event such as a deposit payment, securing a loan or even conditions such as graduating from university to receive a bonus payment.

Suspensive conditions are commonly encountered in contracts for the sale of immovable property (e.g. deposit requests). They are often misunderstood, which can result in little recourse.

According to Mia v Verimark Holdings (Pty) Ltd (522/08) [2009] ZASCA 99 (18 September 2009):

The conclusion of a contract subject to a suspensive condition creates ‘a very real and definite contractual relationship’ between the parties. Pending fulfilment of the suspensive condition the exigible content of the contract is suspended. On fulfilment of the condition the contract becomes of full force and effect and enforceable by the parties in accordance with its terms. No action lies to compel a party to fulfil a suspensive condition.

If it is not fulfilled the contract falls away and no claim for damages flows from its failure. In the absence of a stipulation to the contrary in the contract itself, the only exception to that is where the one party has designedly prevented the fulfilment of the condition. In that event, unless the circumstances show an absence of dolus (intent) on the part of that party, the condition will be deemed to be fulfilled as against that party and a claim for damages for breach of the contract is possible.

In other words, the fulfilment of a suspensive condition is a pre-requisite for a contract to come into force and effect. Similar to the fulfilment of a suspensive condition, in addition to any condition for the creation of a contract, there are a number of requirements that must be fulfilled.

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