The future of contract law: Three conversations at the Cape

by | Jul 28, 2021 | ACTA, ACTA 2021

The future of contract law: Three conversations at the Cape

Author R Brownsword

ISSN: 1996-2088
Affiliations: LLB (University of London (LSE)); Professor of Law at King’s College London and at Bournemouth University, Honorary Professor at Sheffield University, and Visiting Professor at the City University Hong Kong.
Source: Acta Juridica, 2021, p. 3 – 36
https://doi.org/10.47348/ACTA/2021/a1

Abstract

This contribution considers the future of the English law of contract in the form of three conversations that are alert to the disruptive impact of technologies on both the content of legal rules and the way that lawyers think – and indeed on the kind of conversations that lawyers have with one another. The first conversation is concerned with ‘coherence’ in contract law, with the application of general principles to novel fact situations and to new phenomena, with the smoothing of tensions within the law, and with the internal integrity of legal doctrine. The second conversation focuses on a tension between, on the one hand, what may be called a traditional private law ‘coherentist’ concern for doctrinal integrity and the primacy of principle over policy and, on the other hand, a more ‘regulatory’ approach to contracts, especially to consumer contracts, in which policy and instrumental rationality prevail. The third conversation focuses on the use of emerging transactional technologies (such as blockchain-supported smart contracts and AI) that have the potential to displace the rules and principles of contract law. Instead of legal code governing transactions, might we find that technological coding does all the work, making, performing and enforcing ‘contracts’? Each conversation suggests a different future for contract law. The first conversation suggests that contract law will have difficulty in living up to the private law ideal of coherence; the second suggests that coherentism will struggle to survive as it is challenged by an increasingly regulatory approach to the governance of transactions; and the third suggests that, in a world of smart transactional technologies, there is a serious question mark about the relevance of contract law as a body of rules that governs transactions.

Breach of contract

by | Jul 28, 2021 | ACTA, ACTA 2021

Breach of contract

Author E Clive

ISSN: 1996-2088
Affiliations: CBE FRSE; Honorary Professor at the University of Edinburgh.
Source: Acta Juridica, 2021, p. 37 – 56
https://doi.org/10.47348/ACTA/2021/a2

Abstract

This contribution uses J & H Ritchie Ltd v Lloyd Ltd 2007 SC (HL) 89 as a peg on which to hang a number of fundamental questions about contract: What is a contract? Does the word ‘contract’ sometimes refer to a legal relationship rather than a juridical act? If so, does this matter? Is the law on implied terms satisfactory? Might a duty of good faith and fair dealing in contract law be a better way of dealing with certain problems than resort to the implication of terms? When is a breach of contract serious enough to justify cancellation or rescission? Should a supplier of defective goods have a right to cure the defect? Is there a risk of forgetting the difference between a right to withhold performance and a right to rescind or cancel? These questions are prompted by the fact that this was a straightforward case and similar situations must occur regularly. Yet, different judges reasoned differently and came to different conclusions in the course of the case being appealed all the way to the House of Lords. The question, therefore, is: how might a simple case have been better, or in a more straightforward way, approached through law? The contribution argues that the Draft Common Frame of Reference (the DCFR) provides both concepts and rules that would have reached the ultimate conclusion in Ritchie much more quickly and perhaps the case would not have needed to be litigated at all.

Contract law reform: Legislators or judges – or both?

by | Jul 28, 2021 | ACTA, ACTA 2021

Contract law reform: Legislators or judges – or both?

Author H MacQueen

ISSN: 1996-2088
Affiliations: LLB PhD (Edinburgh) FBA FRSE; Professor of Private Law, University of Edinburgh.
Source: Acta Juridica, 2021, p. 57 – 82
https://doi.org/10.47348/ACTA/2021/a3

Abstract

This essay pursues a theme identified by Dale Hutchison – judges’ use of their technical expertise to achieve creativity in law – and asks how far that may be relied upon by law reform bodies, such as the Law Commissions in the United Kingdom. The question is whether such bodies should take account of means other than legislation for having their recommendations put into effect. It is suggested that, while law reform bodies should be fully aware that their published work is a source of information, ideas and arguments for practitioners and judges which may contribute to the judicial development of the law, they should address themselves only to government and the legislature.

Bona fides and ubuntu – A response to Dale Hutchison

by | Jul 28, 2021 | ACTA, ACTA 2021

Bona fides and ubuntu – A response to Dale Hutchison

Author J Barnard-Naudé

ISSN: 1996-2088
Affiliations: BCom (Law) LLB LLD (Pret) MA (Cape Town); Research Professor, University of the Free State.
Source: Acta Juridica, 2021, p. 85 – 106
https://doi.org/10.47348/ACTA/2021/a4

Abstract

This paper is a response to Dale Hutchison’s recent arguments about the role of fairness in contract law after the Constitution. From the point of view of transformative constitutionalism, the paper argues that the fairness ‘debate’ in the South African law of contract should be approached as what it so patently is, namely, as evidence of a deep ideological conflict that has existed in our law of contract for a very long time, and that this debate now exists within the context of a larger debate about the appropriate transformative reach of the Constitution. The argument takes the form of two ‘dangerous supplements’ to Hutchison’s discourse. The first of these supplements contends that indeterminacy is a symptom of the common law itself, rather than a result of contract law’s contact with the Constitution. The second dangerous supplement suggests a responsible judicial engagement with bona fides and ubuntu, one that can exploit the strengths of both the common law and the Constitution and that understands good faith and ubuntu to be ‘inter-linking’ constitutional values that should be enlisted in unison or at least in resonance when it comes to the question of fairness in our contemporary law of contract. In conclusion, I offer a reading of Hutchison’s own politics of contract law and contend that his is an altruistic politics committed to the standard form. I contend that this politics of contract law is consistent with a transformative understanding of the post-apartheid legal order. ‘Law, like every other cultural institution, is a place where we tell one another stories about our relationships with ourselves, one another, and authority. In this, law is no different from the Boston Globe, the CBS evening news, Mother Jones, or a law school faculty meeting. When we tell one another stories, we use languages and themes that different pieces of the culture make available to us, and that limit the stories we can tell. Since our stories influence how we imagine, as well as how we describe, our relationships, our stories also limit who we can be’.

The future of the doctrine of economic duress in South African contract law: The influence of Roman-Dutch law, English law and the Constitution of the Republic

by | Jul 28, 2021 | ACTA, ACTA 2021

The future of the doctrine of economic duress in South African contract law: The influence of Roman-Dutch law, English law and the Constitution of the Republic

Author D Bhana

ISSN: 1996-2088
Affiliations: BCom LLB LLM PhD; Professor of Law, University of the Witwatersrand.
Source: Acta Juridica, 2021, p. 107 – 140
https://doi.org/10.47348/ACTA/2021/a5

Abstract

In England, the contractual doctrine of economic duress is an important mechanism for curbing abuses of superior bargaining power. In contrast, in South Africa, the courts are yet to articulate a definitive doctrine. In this article, I argue for a twenty-first century South African doctrine of economic duress that is delineated primarily in terms of South Africa’s foundational constitutional value of equality. For this purpose, I consider English contract law and show how it is a concern for ‘equity’ that has been central to its treatment of economic duress. I then highlight the normative limitations of the English doctrine, but argue that the English legal experience of economic duress remains valuable for corresponding developments in the modern South African commercial context, especially in light of the latter’s post-apartheid constitutional framework, which provides the normative content of baseline standards that must inform its doctrine of economic duress.

Equity and certainty in contract law

by | Jul 28, 2021 | ACTA, ACTA 2021

Equity and certainty in contract law

Author F Brand

ISSN: 1996-2088
Affiliations: SC BA LLB LLM LLD (hc); former Judge of the Supreme Court of Appeal; Judge of the Appeal Court of Botswana; Justice of the Supreme Court of Fiji; Judge of the International Commercial Court of Qatar; Professor Extraordinary of Private Law at the University of the Free State; Honorary Professor of Law at the University of Stellenbosch.
Source: Acta Juridica, 2021, p. 141 – 176
https://doi.org/10.47348/ACTA/2021/a6

Abstract

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.