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would take place prior to delivery, and that the tiles would
be suitable for use on floors.
It appears from the rest of the particulars that further
batches of tiles were ordered and paid for during January
2022, July 2022, August 2022, September 2 022, January
2023, February 2023, and September 2023. Abr osi e
Brothers says that it later transpired that the tiles, contrary
to International Slab’s undertaking, were not, in fact, fit for
use as floor tiles. In paragraph 9 of the particulars, Abrosie
Brothers sets out the damage s it says it suffered as a result 10
of attempting to use and instal l tiles that were not fit for
purpose. Those damages are amplified in paragraphs 10,
11, and 12 of the particulars.
The defendant excepted to the particulars of claim
as disclosing no cause of action, alternatively being vague
and embarrassing.
The approach to pleadings on an exception is clear.
The pleading assailed must be excipable on every
reasonable interpretation. Mr Naidoo, who appeared for the
defendant, was unable to convince me that it was not a
20
reasonable interpretation of these particulars that one
contract came into being for the supply of all of the tiles set
out in paragraphs 3 and 5 of the particulars, and that the
undertaking that the tiles were suitable for use on
floors, which is recorded in paragraph 3.3, was applicable
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to all of the tiles mentioned in paragraph 5.
Read in that way, the particulars insofar as the
contract are concerned seem to me to be fairly clear. All of
the tiles referred to in the particulars were supplied at the
prices set out in the annexures to the particulars. They
were all subject to an undertaking given by the defendant
that they were suitable for use on floors, and that
undertaking was a material and enforceab le part of the
contract.
There was also some suggestion that the type of
10
damages claimed in paragraphs 9 to 12 of the particulars
were not of the type that were claimable in an action for
contractual damages. I reject that proposition, too. A s Mr
Naidoo was constrained to accept , the damages pleaded in
those paragraphs are all damages that, if the breach is
proved, at least in principle, might flow as a natural and
probable consequence of the breach. The breach, of
course, being the failure to supply ti les consistent with the
undertaking that they were fit for use on floors. I therefore
reject the proposition that the particulars disclose no cause 20
of action.
I now turn to the proposition that the particulars are
vague and embarrassing. That proposition was advanced
by Mr Naidoo on two grounds. The first was that there was
a lack of particularity as to the defect alleged. The defect
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alleged in the tiles is, of course, that they were no t fit for
use on floors.
While Abrosi e Brothers could have been more specific
by setting out why the tiles were no t fit for use on
floors, the factum probandum is clear : there was a warranty
that the tiles were fit for that purpose. Although ple ad ed at
the bare minimum, that pleading is sufficient. The question
of the manner in which the tiles were unfit for the purpose
for which Abrosi e says they were purchased is either a
matter of evidence or ought properly to be the focus of a 10
request for further particulars in preparing for trial.
It was finally suggested that the particulars are vague
and embarrassing because paragraphs 9.1 and 9.3 appear
to duplicate Abrosie Brothers’ damages. On the face of
things, that is a point well taken . H owever, Mr Katzew, who
appeared for Abrosi e Brothers , submitted that , read with the
annexures to the particulars, it is clear that paragraphs 9.1
and 9.3, in fact, relate to two separate costs flowing from
the supply of defective tiles. I accept that the particulars
are reasonably capable of that interpretation and that it is a 20
matt er of evidence whether or not the damages pleaded in
paragraph 9 and set out in the annexures to the particulars
are, in fact, claimable.
There was some play in the heads of argument and in
the notice of exception about the use of the term “general
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damages ” in paragraph 5 . T he was also a suggestion that
contractual damages cannot be claimed unless the contract
is cancelled. Mr Naidoo did not seriously pursue either of
those propositions and I would in any event have rejected
them both.
Although the lan guage of general damages is
in apposite to a contractual claim, the term general
damages , as deployed in paragraph 9 , is doing no real
work. It is clear to any reasonable reader of these
particulars that the damages particularised in paragraphs
10
9.1 to 9.3 are, in fact, damages of a patrimonial and
contractual nature.
It is also trite that damages for breach of contract
may be claimed in the absence of cancellation. The
obvious example of such a situation is where the parties are
in an ongoing relationship , and some part of one party's
performance is defective. The other party may, in those
circumstances, claim damages for the defective
performance while still seeking to keep the contract alive.
I understand that there is authority for that 20
proposition, to which Mr Katzew referred me, but in my view
it follows as a matter of basic logic when the fundamental
principles of contract law are borne in mind.
For all of those reasons, there is nothing in the
exception, and it must be dismissed.