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Eye Site Gauteng Incorporated and Others v Stanley & De Kock Optometrist Incorporated (A241/11) [2012] ZAWCHC 103 (3 February 2012)

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[4) It is necessary, as part of the background, to have regard to certain provisions of the main agreement.

(a) The businesses purchased by the partnership consist of the particular optometric practices, including their stock-in-trade and the fixtures, fittings and equipment used in connection with the practices. The premises from which the practices are conducted are not owned by the Eye Site sellers, but leased from different landlords. It was a condition precedent of the main agreement that the partnership should be able to obtain cessions of these leases or otherwise secure tenure of the premises from which the practices are conducted.

(b) Clause 4 of the main agreement enumerated the conditions precedent which had to be fulfilled, alternatively waived, on or before 28 December2003. This included a condition that the partnership should secure finance for the payment of the purchase price from a registered financial institution on or before 28 December 2003.

(c) Clause 5 stipulated that if any of the conditions precedent were not fulfilled or waived by 28 December 2004 (the parties accept that this is a typing error as it should read 28 December 2003), the main agreement would be null and void and to the extent that any portion thereof had been implemented, the parties would co-operate with each other to be restored to their respective positions quo ante. The clause further provided that possession of the practices would then have to be restored to the Eye Site sellers in the same good order and condition as they had been on the contractual possession date (3 December 2003).

(d) The financial consequences of the failure of the main agreement by virtue of the non-fulfilment of any condition precedent, were further regulated by clause 5.3, read with clauses 5.7 and 13 of the main agreement. The gist thereof is that the Eye Site sellers would only be liable for expenditure in respect of liabilities incurred in the ordinary and normal course of the business of the practices purchased, and any liabilities incurred in excess thereof, would be the responsibility of the purchaser (the partnership). Provision was made for the preparation of an adjustment account by a nominated auditor to establish the amount found to be due by either party to the other, which amount would be payable forthwith on the presentation of such account.

(e) Clause 22.1 provided that any dispute between the parties arising from or in connection with the main agreement, should be finally resolved by arbitration.

[5] It is common cause that the main agreement failed by virtue of the non-fulfilment by 28 December 2003 of one or more of the conditions precedent stipulated in clause 4. As a consequence thereof, possession of the practices sold in terms of the main agreement was restored to the respective sellers thereof, including the Grayston Drive practice which had been restored to first appellant.

[6] It is further common cause that no adjustment account, as envisaged in clauses 5.7and 13 of the main agreement, has been prepared by the nominated auditor or by the parties to the main agreement.

REFURBISHMENT OF THE GRAYSTON DRIVE PRACTICE

[7] During 2003, and prior to the commencement of the negotiations culminating in the main agreement, first appellant, as the owner of the Grayston Drive practice, intended refurbishing these premises. Mr. Bruce Thomas of Phase 2 Interiors was approached to do the refurbishment. He prepared sketches and provided first appellant with PC quotations for the work to be done.

[8] During October 2003, and at a stage when the negotiations which culminated in the conclusion of the main agreement had progressed substantially, Mr. Hlava, representing the Eye Site Group, and Mr. Von Holdt, representing the Stanley & De Kock Group, met to discuss the intended refurbishing of the Grayston Drive practice. They agreed that, in anticipation of receiving ownership of the Grayston Drive practice under the main agreement, the Stanley & De Kock Group would assume liability for the cost of the refurbishment of the Grayston Drive practice.

[9] The respondent, being the entity in the Stanley & De Kock Group which had the necessary financial standing and assets to procure the required finance for the refurbishment of the Grayston Drive practice, obtained these funds from Investec Bank. The refurbishment of the Grayston Drive practice went ahead and was completed during December 2003, in accordance with the pre-existing sketches and PC quotations submitted to first appellant by Phase 2 Interiors. Investec Bank paid the cost of the refurbishment, which amounted to R436 178-03, to Phase 2 Interiors. Respondent settled this indebtedness to Investec Bank and instituted action for the repayment thereof when first appellant, after possession of the refurbished Grayston Drive practice had been restored to it upon the failure of the main agreement, refused to recompense respondent for this expenditure.

RESPONDENT'S CLAIM AND THE DEFENCE THERETO

[10] Respondent instituted action in the court a quo against appellants for repayment of the amount expended in refurbishing the Grayston Drive practice. The second and third appellants were joined on the basis that, at all material times, they were directors of first appellant, whose Memorandum of Association provides that its directors and past directors are jointly and severally liable, together with first appellant, for such debts and liabilities of first appellant which were contracted during their periods of office. In this regard respondent also relies on the provisions of section 53 (b) of the Companies Act No. 61 of 1973, as creating a joint and several liability on the part of second and third appellants, for such debts and liabilities of the first appellant as were contracted during their periods of office. The allegations concerning the liability of the second and third appellants in terms of their directorships, read with the provisions of first appellant's Memorandum of Association and section 53 (b) of the Companies Act, were not put in issue.

[11] Respondent's main claim against appellants is based in contract. It is alleged that there was an oral agreement between respondent and first appellant, respectively represented by Von Holdt and Hlava, that, in anticipation of the partnership obtaining ownership of the Grayston Drive practice in terms of the main agreement, respondent would obtain finance for, and attend to the refurbishment of, the Grayston Drive practice ("the refurbishment agreement").

[12] Respondent further alleges that it was a tacit term of the refurbishment agreement that, in the event of the main agreement not being concluded or, if concluded, failing for whatever reason, resulting in the partnership not obtaining ownership of the Grayston Drive practice, first appellant would reimburse respondent for the cost incurred by it in financing the refurbishment of the Grayston Drive practice.

[13] In an alternative cause of action, respondent alleges that by reason of its financing the refurbishment of the Grayston Drive practice, which was returned to the possession of first appellant upon the failure of the main agreement, first appellant has been unjustly enriched at the expense of respondent. Respondent accordingly contends that, on this basis, first appellant is liable to it for the cost incurred by respondent in financing the refurbishment of the Grayston Drive practice.

[14] Appellants' defence to the main and alternative claims amounted to no more than a bare denial. I should add that during the trial appellants made the admission that first appellant was the owner of the Grayston Drive practice and that it was first appellant's intention to refurbish this practice, which intention arose prior to the conclusion of the refurbishment agreement.

THE JUDGMENT OF THE COURT A QUO

[15] The learned Judge accepted that first appellant and respondent had concluded the refurbishment agreement and held that it was subject to the tacit term contended for by respondent. In view of her finding on the main claim, it was not necessary for the learned Judge to deal with the alternative claim based on unjust enrichment. She accordingly granted judgment in favour of respondent for R424 363-03, thereby reducing the amount claimed by Rl 1 815-00, being the cost of the signage reflecting the Stanley & De Kock name.

THE ISSUES

[16] The issues for determination on appeal, are the following:

(a) Did first appellant and respondent conclude the refurbishment agreement, as alleged by respondent?

(b) Does the refurbishment agreement constitute a valid and enforceable contract?

(c) Is the refurbishment agreement subject to the tacit term contended for by respondent?

(d) Alternatively, has first appellant been unjustly enriched at the expense of respondent in respect of the cost of the refurbishment of the Grayston Drive practice?

[17] I proceed to deal with these issues separately. The alleged refurbishment agreement

[18] Mr Brusser SC, who acted for appellants on appeal and in the court a quo, submitted that, having regard to the "bigger picture" in terms of which the Stanley & De Kock Group intended to take over all the optometric practices of the Eye Site Group, it is highly improbable that one practice (the Grayston Drive practice) would be singled out for the conclusion of a separate refurbishment agreement. He therefore argued that this refurbishment expense should be dealt with in terms of the provisions of the main agreement and not be regarded as the subject of a separate and distinct refurbishment agreement between respondent and first appellant.

[19] In my view there is no merit in this submission. The evidence of Von Holdt and Hlava clearly shows that they concluded the refurbishment agreement in October 2003, whereby the refurbishment of the Grayston Drive practice would be taken over by the Stanley & De Kock Group. As to the specific entity in the Stanley & De Kock Group which would take over the refurbishment obligation, Von Holdt testified as follows:

"It makes sense that we, as Stanley & De Kock Optometrists Inc., were this entity. We had pre-approved funds, it made a lot of sense...and we went ahead and utilised that entity to raise the money to proceed with this refurbishment. "

[20] It may be that, at the time of the conclusion of the refurbishment agreement in October 2003, there was not yet certainty as to which entity in the Stanley & De Kock Group would take over the refurbishment obligation, but this does not detract from the fact that Von Holdt and Hlava, in their representative capacities, concluded the refurbishment agreement. The proper construction would probably be that at that stage Von Holdt acted on behalf of an unidentified principal, which later turned out to be the respondent.

[21] It should be borne in mind that in October 2003, the main agreement had not yet been concluded and it seems rather improbable that Von Holdt and

Hlava would have intended the refurbishment expense to be dealt with in accordance with the terms of an agreement which had not yet been finalised. Furthermore, respondent did not become a party to the main agreement and would not be entitled to exercise any rights in terms thereof.

[22] It seems eminently reasonable to me that, as the refurbishment only affected one of the seven practices to be sold in terms of the main agreement, it would have been treated as a separate and distinct agreement between the two parties involved, namely first appellant as the owner of the practice and respondent as the party who was to finance the refurbishment.

[23] I accordingly find that first appellant and respondent did conclude the refurbishment agreement on the terms as alleged by respondent.

Validity of the refurbishment agreement

[24] Mr. Brusser submitted that, as respondent has failed to either plead or prove the existence of a reciprocal obligation on the part of first appellant, the refurbishment agreement is invalid and unenforceable.

[25] I do not agree with this submission. In the seminal decision of Conradie v Rossouw 1919 AD 276, it was held that the English Law requirement of valuable consideration, in the absence of which a contract is unenforceable, does not form part of our law. This means that reciprocal performance in the sense of a valuable consideration or quid pro quo, is not a requirement for a valid contract in our law. In Conradie v Rossouw, supra at 288, Solomon ACJ stated the general rule as follows:

"An agreement between two or more persons entered into seriously and deliberately is enforceable by action. "

[26] There is no evidence to suggest that Von Holdt and Hlava did not seriously and deliberately enter into the refurbishment agreement. On the contrary, their own evidence shows that they intended to bind the parties to this agreement. In terms thereof first appellant was bound to provide respondent access to the premises to effect the refurbishment, while respondent was obliged to finance same. This constituted a valid and enforceable contract.

The tacit term

[27] The law on the importation of tacit terms in a contract, has been clearly stated by our courts over many years. A brief reference thereto will suffice.

[28] A tacit term is a term implied from the facts and was described by Corbett AJA (as he then was) in Alfred McAlpine and Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 531-532, as "...an unexpressed provision of the contract which derives from the common intention of the parties, as inferred by the court from the express terms of the contract and the surrounding circumstances ". A court is normally slow to imply a term in a contract and it is frequently said that a term can only be implied if it is necessary in the business sense to give efficacy to the contract. Furthermore, the term to be implied has to be certain.

[29] The officious bystander test is often applied in determining whether a contract is subject to a tacit term. Our courts frequently refer to the following passage from the judgment of Scrutton LJ in Reigate v Union Manufacturing Company (Ramsbottom) [1918] 1 KB 592 at 605.

"A term can only be implied if it is necessary in the business sense to give efficacy to the contract; ie if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said to the parties: 'what will happen in such a case?' they would both have replied: 'of course so and so will happen; we did not trouble to say that; it is too clear. "'

[30] It is clear from the decided cases that, not only the surrounding circumstances, but also the subsequent conduct of the parties to the contract, constitutes relevant evidence in deciding whether or not to import the tacit term into the contract. See Wilkens NO v Voges [1994] ZASCA 53; 1994 (3) SA 130 (A).

[31] Mr. Brusser submitted that the tacit term should not be imported, as the refurbishment of the Grayston Drive practice was part of the "bigger deal", with the result that the refurbishment expense should be dealt with in terms of the adjustment account procedure provided in clauses 5.7 and 13 of the main agreement.

[32] I do not agree. In my view a conspectus of the relevant evidence as a whole clearly justifies the inference that it was a tacit term of the refurbishment agreement that, in the event of the main agreement failing for whatever reason, first appellant would reimburse respondent for the cost incurred in financing the refurbishment of the Grayston Drive practice. I refer to the following evidence:

(a) The refurbishment agreement was linked to and dependant on the existence of the main agreement, for the only reason that respondent had for refurbishing the Grayston Drive practice was in anticipation of the partnership (in which all the directors of respondent had a stake) eventually becoming the owner of the various practices, including the Grayston Drive practice. In the event of the main agreement failing, possession of the Grayston Drive practice would have to be restored to first appellant and respondent would no longer, through the partnership, derive any benefit therefrom. Both Von Holdt and Hlava were, therefore, fully aware that a failure of the main agreement would oblige each of them to restore to the other what had been received under the main agreement (including possession of the refurbished Grayston Drive practice).

(b) Von Holdt and Hlava were not strangers to each other. On the contrary, they had done business together for many years. They were not only well-known to each other on a business level, but also had some personal contact in the past. They no doubt trusted and respected each other, which prompted Von Holdt to testify that his understanding was that, if anything went wrong, Hlava "would make good".

(c) Mr. Edwards of Investec Bank, who was intimately involved in the refurbishment deal, had no hesitation in expressing the following view during cross-examination:

"...surely if Mr. Hlava knew that John (Von Holdt) had paid for those goods and he has taken the shop back, this is my opinion, he should have either settled us or paid John or done something... "

In my view Edwards can be regarded as an independent officious bystander and this knee-jerk reaction of his speaks volumes.

(d) Edwards further testified that some months after the failure of the main agreement, he asked Hlava what he intended to do regarding the refurbishment cost, whereupon Hlava said that it was the "right thing" to send him (Hlava) the relevant documentation to enable him to look at or sign same. Edwards thereupon forwarded a draft instalment agreement to Hlava, which would substitute the first appellant for respondent as debtor in respect of the refurbishment expenses, but he was subsequently informed by Hlava that the latter was "not allowed" to sign such agreement. As pointed out by Mr. Roeloffze, acting for respondent, Hlava's own evidence also makes it clear that he was prepared to "look at" the cost of the refurbishment and therefore asked Edwards to send him the relevant details. This conduct of Hlava gives the lie to his present stance, namely that first appellant has no obligation to reimburse respondent for the refurbishment cost incurred by the latter.

(e) On 15 July 2004, first appellant's attorney completed a file note after having had a telephone conversation with Edwards of Investec Bank, concerning the amount owing to Investec Bank in respect of the refurbishment of the Grayston Drive practice. The file note, inter alia, records that:

"My client wants to take over the outstanding obligations under such an agreement subject to the amount being corrected once it settles its disputes with John Von Holdt. "

In my view this conveys an appreciation of the part of Hlava, representing first appellant, that the refurbishment liability ought to be settled by first appellant. This constitutes conduct on the part of first appellant clearly indicating that, in first appellant's view, the refurbishment agreement contained the tacit term contended for by respondent.

[33] I am further in agreement with the submission of Mr. Roeloffze that the presence of the adjustment account in the main agreement does not preclude the tacit repayment term contended for by respondent. As pointed out earlier, respondent was not a party to the main agreement and is a different legal entity to the partnership which is the purchaser in terms of the main agreement. The respondent therefore has no locus standi in terms of the main agreement to avail itself of the provisions relating to the adjustment account.

[34] I am satisfied that a tacit term obliging first appellant to repay to respondent the refurbishment cost in the event of the failure of the main agreement, is clear and certain. I am also in agreement with Mr. Roeloffze that, in the absence of this tacit term, the refurbishment agreement is not commercially effective in that it fails to provide for the glaringly obvious question of what happens to the refurbishment cost if the main agreement fails. In this regard it should also be borne in mind that, according to the evidence, it would be very difficult, if not impossible, to remove the fixtures and fittings constituting the refurbishment of the Grayston Drive practice. I therefore conclude that the tacit term contended for by respondent, is clearly necessary to give business efficacy to the refurbishment agreement.

[35] In the result I find that the learned Judge a quo correctly held that the refurbishment agreement is subject to the said tacit term.

CONCLUSION

[36] In view of my findings aforesaid, it is not necessary to deal with respondent's alternative cause of action based on unjust enrichment.

[37] I conclude that the court a quo correctly granted judgment in favour of respondent and propose that the appeal be dismissed.

P B FOURIE

Judge of the High Court

GRIESEL J:

[38] I have read the judgment prepared by my colleague, Fourie J, and I agree with his conclusion that the appeal should be dismissed for the reasons stated by him.

[39] A further aspect that requires attention relates to the state of the record and its bearing on the costs of the appeal. The record placed before us comprises some 1 646 pages in total. Of these, the actual transcript of proceedings in the trial court comprises 443 pages. This includes inter alia a full transcript of counsel's oral arguments (some 50 pages) on the defendants' unsuccessful application for absolution from the instance at the close of the plaintiffs case.¹ A joint bundle of documentary exhibits contains a further 436 pages. It includes numerous documents (more than 80% of the total bundle, according to my estimate) that had not been referred to at the trial, could not have been expected to be referred to in the appeal, were not referred to in the appeal and were in fact not relevant to the appeal.² The balance of the record consists of the pleadings and a large volume of totally irrelevant and unnecessary documents, such as a host of notices and other formal documents; lengthy discovery affidavits; a voluminous application for postponement of the trial; as well as written heads of argument filed on behalf of both sides at the end of the trial in the court a quo. Moreover, many documents have been duplicated and appear more than once at different places in the record. Thus, for example, the voluminous mainagreement between the parties (44 pages) has been duplicated, as has a further, even more voluminous, agreement between the appellants and a third party (130 pages). Not only that; the defendants' response to the plaintiffs rule 37 request for admissions appears no less than four times at different places in the record. According to my rough estimate, more than 60% of the total record placed before us has no bearing on the points at issue in the appeal.

[40] Uniform rule 49(9) provides:

'By consent of the parties, exhibits and annexures having no bearing on the point at issue in the appeal and immaterial portions of lengthy documents may be omitted. Such consent, setting out what documents or parts thereof have been omitted, shall be signed by the parties and shall be included in the record on appeal. The court hearing the appeal may order that the whole of the record be placed before it.'

[41] Similar rules apply to appeals from the magistrates' courts³ and to the Supreme Court of Appeal.⁴ The SCA rule contains a useful catalogue of the kind of documents that should not form part of the record on appeal:

(i) argument and opening address;⁵

(ii) formal documents;

(iii) discovery affidavits and the like;

(iv) identical duplicates of any document; or

(v) documents not proved or admitted.

[42] The record before us is replete with documents falling into each of those prohibited categories. And it is no answer to argue, as counsel for the appellant sought to do, that the provisions just quoted apply only to appeals to the SCA. The rationale for the provisions of rule 49(9) is exactly the same - the only difference is that the SCA rule spells out in terms some of the categories of documents which ordinarily have no bearing on the point at issue in the appeal.

[43] Practitioners have repeatedly been admonished over the years for their failure to comply with the letter and spirit of these provisions, at the same time being warned of the possibility of punitive costs against them for non-compliance.⁶ As long ago as 1983 Corbett JA issued the following warning to practitioners:⁷

'In recent years this Court has on a number of occasions drawn attention to the un­necessary inclusion in appeal records of numerous and sometimes lengthy documents and has made appropriate orders relating to the needless costs occasioned thereby. . . . Despite what has been said and ordered in these and other cases the practice of including unnecessary documents in appeal records persists. In my opinion, it is the duty of attorneys responsible for the preparation and lodging of appeal records to ensure that, if possible, this does not occur and thereby to obviate the incurring of unnecessary costs. Failure to perform this duty could amount to a breach of the duty of care owed by the attorney to his client. The time may come when this Court may consider it appropriate in such cases to order that such unnecessary costs be paid by the attorney concerned de bonis propriis.''

[44] Since then, punitive costs orders have on innumerable occasions been issued against practitioners;⁸ yet still the problem persists, as the present appeal illustrates.

[45] Against this background, we requested the parties, prior to the hearing of the appeal, to prepare and address argument on the question, in the event of the appeal being dismissed, why the appellants' attorney should not be ordered to pay the costs of preparing, copying and perusing unnecessary portions of the record de bonis propriis; or, in the event of the appeal being upheld, why the appellants' attorney should not be deprived of his fees in relation to preparing, copying and perusing unnecessary portions of the record; or why some alternative appropriate order should not be made.

[46] In response to this directive, the appellants' attorney delivered an affidavit in which he explains that he compiled the record of appeal in accordance with his understanding of the requirements of rule 49(7)(a), which requires of an appellant applying for a date for the hearing of an appeal to file with the registrar three copies of the record on appeal and to furnish two copies thereof to the respondent. The attorney explains that, on his reading of this rule, the provisions were peremptory and not subject to the exercise of any discretion on his part and, as he understood it, he was obliged to provide the registrar with 'a complete index and copies of all papers, documents and exhibits in the case'.

[47] This explanation does not withstand scrutiny, as it focuses exclusively on the first part of the rule, ignoring the requirement in the same rule which specifically requires exclusion of 'formal and im­material documents.' More importantly, the explanation also completely ignores the provisions of rule 49(9) that have been quoted above.

[48] Counsel further argued that what had to be included in the record were all documents that were 'potentially relevant' to the determination of the issues under appeal and sought to persuade us in his supple­mentary heads of argument -

'that all of the documentation included in the appeal record was indubitably potentially relevant to the determination of the issues under appeal. Indeed it is submitted that for an attorney purposefully to exclude documentation that is potentially relevant to the determination of the issues under appeal would not only be a breach of such attorney's duty to the court but also could conceivably be a flagrant breach of his duty to both his client (the Appellant) as well as the Respondent'.

[49] As demonstrated above, this argument, likewise, cannot be accepted. It was the duty of the appellant's attorney when compiling the record on appeal conscientiously to apply his mind to the question which documents should form part of the record, having regard to the principles set out above and the various categories of irrelevant documents referred to. Having done so, and having identified the irrelevant parts of the record, it was his duty, in terms of rule 49(9), to seek the consent in writing of the respondent's attorney to the exclusion of the immaterial portions of the record. Had such consent been withheld unreasonably, the appellant's attorney would, of course, have been absolved of responsibility for the state of the record and the eventual blame (if there is blame) would have shifted to the respondent's attorney. This is not what happened in this instance, however, with the result that this represents an egregious example of non-compliance with the letter and spirit of rule 49(9).

[50] Not only was a vast volume of unnecessary documents included in the record; to compound matters, counsel appears to have overlooked or ignored the following provisions of Practice Note 49(2):

'Appellant or his or her legal representative(s) shall, when delivering the heads of argument and after consultation with the other parties' legal representative(s), file a statement setting out which portions of the record, if any, they regard as irrelevant to the appeal and to which they do not intend to refer.'

In the result, a huge amount of unnecessary energy had to be expended by the members of this court in preparing for the hearing of this appeal.

[51] In these circumstances it is incumbent upon this court to express its displeasure at the failure of the appellants' legal representatives to comply with the letter and spirit of the rules relating to preparation of the record on appeal and their failure to heed the repeated warnings issued by the courts in this context. It would be unfair to expect the appellants to bear full liability for such failure. In my view, the appellant's attorney should be ordered to bear 60% of the costs occasioned by preparing, copying and perusing the record on appeal, such costs to be taxed on the scale as between attorney and own client.

Conclusion

[52] For the reasons set out above, the following order is issued:

The appeal is dismissed with costs; provided that the appellants' attorney shall be liable to pay de bonis propriis 60% of the costs occasioned by preparing, copying and perusing the record on appeal, such costs to be taxed on the scale as between attorney and own client.

B M GRIESEL

Judge of the High Court

FOURIE J: I agree.

P B FOURIE

Judge of the High Court

HENNEY J: I agree.

R C A HENNEY J

Judge of the High Court

1This is contrary to well-established practice that unless special circumstances are present or the court directs otherwise, it is unnecessary for counsel's argument to be transcribed.See Omega Africa Plastics v Swisstool Manufacturing Co 1978 (4) SA 675 (A) at 682E-683A.

2Cf Salviati & Santori v Primesite Outdoor Advertising 2001 (3) SA 766 (SCA) para 17.

3Uniform rule 50(8)(b).

4SCA rule 8(6)0).

5See footnote 1 above and see also Leibowitz t/a Lee Finance v Mhlana & ors 2006 (6) SA 180 (SCA) para 10; Nkengana v Schnetler 2011 (1) All SA 272 (SCA) para 17.

6See Erasmus Superior Court Practice at A1-65 (Service 36, 2011) and the cases cited in footnotes 3 and 4; and at Cl-9 (Service 37, 2011) and the cases cited in footnote 3.

7Government of RSA v Maskam Boukontrakteurs 1984 (1) SA 680 (A) at 692H-693A (other case references omitted).

8Erasmus loc cit.