Revival of Lapsed Deeds of Sale

In Fairoaks Investment Holdings (Pty) Ltd & Another v Oliver & Others 2008 (4) SA 302 (SCA) the court had to deal with an agreement of sale which had lapsed when certain suspensive conditions had not been fulfilled timeously. The parties thereafter agreed to revive the lapsed contract, except that the suspensive conditions were no longer part of the agreement. The court held that they were agreeing to revive the lapsed agreement with amendments (i.e. the deletion of the suspensive conditions) and that such agreement had to comply with the formalities imposed by Section 2(1) of the Alienation of Land Act, i.e. such agreement had to be in writing and signed by the parties. A different situation prevails where a contract has been validly cancelled and the parties subsequently agree to a waiver of the right of cancellation – that waiver need not be in writing (Neethling v Klopper & Others 1967 (4) SA 459 (A) at 467 H). The precise mechanism used for reviving a lapsed contract is thus important, and will govern whether the revival agreement needs to be in writing or not.