The challenges of private law: A research agenda for an autonomy-based private law

by | Apr 1, 2020 | ACTA, ACTA 2019

The challenges of private law: A research agenda for an autonomy-based private law

Authors H Dagan

ISSN: 1996-2088
Affiliations: Stewart and Judy Colton Professor of Legal Theory and Innovation and Director, The Edmond J Safra Center for Ethics, Tel-Aviv University
Source: Acta Juridica, 2019, p. 3 – 33

Abstract

Properly understood, private law establishes ideal frameworks for respectful interactions between self-determining individuals, which are indispensable for a society where all recognise one another as genuinely free and equal agents. Only private law can form and sustain the variety of frameworks necessary for our ability to lead our chosen conception of life. And only private law can cast them as interactions between free and equal individuals who respect one another as the persons they actually are, thus vindicating the demands of relational justice. Hence, the two animating principles of a liberal (that is, autonomy-enhancing) private law – structural pluralism and interpersonal accommodation. Building on this account of private law, this essay offers a preliminary survey of three important challenges to private law in a liberal society. One challenge, prompted by the injunction of structural pluralism, is that of identifying missing frameworks, that is: detecting spheres of life in which private law fails to supply a sufficiently diverse set of alternative property institutions or contract types and is thus insufficiently autonomy-enhancing. Another challenge emerges whenever the constitutive good(s) of the social practice that the parties engage in are in tension with the injunction of interpersonal accommodation. These cases require private law either to allow these goods to override the injunction of interpersonal accommodation or else to discard or reform the pertinent legal (and social) practice. Finally, because the intrinsic value of private law does not require treating private law and public law as mutually exclusive categories, private law can consider utilising public law (vertical) mechanisms to help secure its horizontal mission and must be careful not to undermine the liberal state’s commitments to distributive justice, democratic citizenship and aggregate welfare. I thus conclude with a consideration of the ways in which private law can coordinate with public law, namely: either supplement its doctrinal framework with a regulatory infrastructure or adapt it in order to address pertinent public commitments while still meeting the demands of relational justice.

The idea of a legal obligation

by | Apr 1, 2020 | ACTA, ACTA 2019

The idea of a legal obligation

Authors N Jansen

ISSN: 1996-2088
Affiliations: Professor of Civil Law, Institute of Legal History, University of Münster, Germany
Source: Acta Juridica, 2019, p. 35 – 56

Abstract

Justinian once defined ‘obligation’ as a vinculum iuris, ie a legal bond between the debtor and his creditor. Although this concept is still an aspect of modern legal thinking, it cannot capture all aspects of obligations in modern law. In fact, the traditional Roman concept of obligatio does not appropriately account, inter alia, for the modern principle of freedom of assignments. This essay, therefore, analyses the history of the concept of obligatio, reflecting in particular on the law of assignment, the law of delict and unjustified enrichment. A result of this history is that obligations, as far as the creditor’s position is concerned, are today regarded also as proprietary rights.

Remedies, repentance and the doctrine of election in South African contract law

by | Mar 31, 2020 | ACTA, ACTA 2019

Remedies, repentance and the doctrine of election in South African contract law

Authors G Glover

ISSN: 1996-2088
Affiliations: Associate Professor, Faculty of Law, Rhodes University
Source: Acta Juridica, 2019, p. 59 – 97

Abstract

One of the main features of South Africa’s law on remedies for breach of contract is the doctrine of election. In cases where a major breach has occurred, or a cancellation clause entitles the aggrieved party to seek cancellation, the aggrieved party has an election either to cancel or to claim performance, and will be held to that binary choice. In Primat Construction CC v Nelson Mandela Bay Metropolitan Municipality the Supreme Court of Appeal recently recognised an exception to the usual election rule, specifically in cases involving repudiation. In terms of the ‘repentance principle’, a party who experiences repudiation may initially seek performance in the hope that the breaching party will repent of their breach; but if it does not, the aggrieved party may then change its mind and seek cancellation. This essay considers the history of the doctrine of election and the path to the recognition of its qualifier, the repentance principle. Thereafter, the essay poses the question whether it remains desirable for the strict doctrine of election to continue to apply in South African law, bearing in mind that a strict election can have an unduly constraining effect on the interests of the non-breaching (or ‘innocent’) party. This analysis is informed by the broader policy considerations behind the recognition of the repentance principle; the fact that other analogous exceptions to the election rule do exist; and the fact that other jurisdictions do not adopt such a strict approach to the aggrieved party’s choice of remedy.

From bona fides to ubuntu: The quest for fairness in the South African law of contract

by | Mar 31, 2020 | ACTA, ACTA 2019

From bona fides to ubuntu: The quest for fairness in the South African law of contract

Authors D Hutchison

ISSN: 1996-2088
Affiliations: Emeritus Professor, University of Cape Town
Source: Acta Juridica, 2019, p. 99 – 126

Abstract

The role of fairness in the law of contract – and, more particularly, the extent to which a court may refuse to enforce an otherwise valid contract term on the grounds of unfairness – has for many years been a very contentious issue in South Africa. The Constitutional Court and the Supreme Court of Appeal appear to hold divergent views on the matter. This has led to some tension between these two courts, and is causing an undesirable level of legal uncertainty, as judges in the High Court choose to follow one approach or the other. Each new issue of the law reports promises to herald another development in what has become an ongoing saga. This paper traces the unfolding story through the cases, and concludes with a plea for a definite ruling by the Constitutional Court on the issue.

Interpretation of suretyships and the Constitution

by | Mar 31, 2020 | ACTA, ACTA 2019

Interpretation of suretyships and the Constitution

Authors J Pretorius

ISSN: 1996-2088
Affiliations: Attorney; Emeritus Professor of Law, University of South Africa; Extraordinary Professor of Law, University of the Western Cape; Visiting Professor at the University of Johannesburg; and Life Member of Clare Hall, University of Cambridge
Source: Acta Juridica, 2019, p. 127 – 140

Abstract

There seem to be different approaches to the interpretation of contracts. These approaches have a bearing on the certainty of contracts and a disregard of the evidentiary part of the parol evidence rule. This is especially the case in the law of suretyship, where creditors are no longer certain that the surety will adhere to the bargain that he contracted for. This essay examines two similar Supreme Court of Appeal cases where the outcomes were different.

Sale and the warranty of title

by | Mar 31, 2020 | ACTA, ACTA 2019

Sale and the warranty of title

Authors K Reid

ISSN: 1996-2088
Affiliations: Professor Emeritus of Scots Law, University of Edinburgh; Fellow of the Stellenbosch Institute for Advanced Study (STIAS); Writer to Her Majesty’s Signet
Source: Acta Juridica, 2019, p. 141 – 164

Abstract

Both Scotland and South Africa received the rule of Roman law in terms of which a seller of property was obliged to maintain the buyer in possession but not obliged to make the buyer owner; there was, in other words, a warranty against eviction rather than an outright warranty of title. In both Scotland and South Africa, too, there has since been a move in the direction of a warranty of title so that today there is an ungainly, and possibly unstable, combination of the two types of warranty. This essay traces and compares the development of the implied warranty in respect of title in Scotland and South Africa.