Ilaw With Michael Adendorff

The law is not a natural science that works in absolute mathematic terms, rather it is a social science, so the very high accuracy rate of findings by our courts is extraordinary. Also, there can be a right of appeal where a party is dissatisfied with an outcome.

So, in a recent case the court had to decide the legal outcome of a number of conversations where promises were made that a burial lot would be transferred to a man so that he and his wife could be buried there. The judge found that the conversations did not give rise to a legally binding contract, nevertheless, the person who made the promises was estopped from denying she made the promises, so had to honour them.

On appeal the court held that the conversations during which the promises were made did not give rise to a binding and enforceable contract, because there was effectively a gift unsupported by consideration to transfer the relevant burial licence. Nevertheless, by making the promises, an expectation was created and the promises were made to achieve an emotional benefit. The person to whom the promises were made, relied on them to his detriment, and acted on them because he had for all practical purposes exhausted the right to determine where his wife was to be buried. So, if the promise was not kept, the man did not have the comfort of knowing that he had preserved for himself the ability to be buried next to his wife. It was not a disproportionate remedy to require the person who made the promise to make good her promise.

This case is a rather endearing example of how even in the most extra ordinary circumstances the law can achieve a fair outcome.