By Sanette Viljoen
Facts: John wants to rent his neighbour Peter’s land. John and Peter, however, cannot agree on the rental. John first wants to see if it’s going to rain and whether he is going to get a good harvest before he can determine how much rental he can pay. May John and Peter agree that they will agree on the rental at a later stage?
In our law it is generally known that an agreement to agree is invalid. In other words, John cannot rent his neighbour’s land on the basis that they will talk about the rental later on the basis of how good the harvest is going to be that year.
Such a contract will be unenforceable because there was no real consensus. When such a contract lands before in court, the court too will not be able to reach consensus on behalf of the parties. To expect the court to come to a decision in such a case, would mean that the court would have to enter into a contract on behalf of the parties, which the courts have never been prepared to do.
However, provision can be made for a module in terms of which the rental can be determined. Alternatively provision can be made for the appointment of an independent third party, e.g. an estate agent, to make a final decision on the rental.
A way must therefore be found to determine the rental. The contract will then be enforceable because the rental is payable. In other words, although the parties had not reached consensus at the stage of signing, they agree and have reached concurrence on how it was going to be determined at a later stage. This must also be done in a determinable manner.