Some thoughts on the consequences of illegal contracts

by | Jul 28, 2021 | ACTA, ACTA 2021

Some thoughts on the consequences of illegal contracts

Author J du Plessis

ISSN: 1996-2088
Affiliations: BCom LLB LLM (Stell) PhD (Aberdeen); distinguished professor of law, Stellenbosch University.
Source: Acta Juridica, 2021, p. 177 – 202
https://doi.org/10.47348/ACTA/2021/a7

Abstract

Few topics in the law of contract have generated as much debate as determining the effects of contracts that infringe statutory or common-law rules. While South African law has in some respects adopted remarkably progressive positions in these debates, especially by displaying flexibility in determining when parties may claim restitution, it also still applies some constructs, rules or maxims in a manner that impedes determining the appropriate consequences of infringing rules or illegality. In this regard it is argued (i) that the concept of an ‘illegal contract’ should be treated with caution, since different commentators automatically link it to different consequences; (ii) that the continued reference to a construct styled the par delictum rule is not helpful when determining whether duties of restitution arise from these contracts; and (iii) that the ex turpi maxim creates the misleading impression that tainted contracts are invariably unenforceable, whereas the reality may be quite different.

The contract-delict interface and harm-causing omissions

by | Jul 28, 2021 | ACTA, ACTA 2021

The contract-delict interface and harm-causing omissions

Author A Fagan

ISSN: 1996-2088
Affiliations: BA LLB (Cape Town) BA DPhil (Oxon); WP Schreiner Professor in the Faculty of Law, University of Cape Town.
Source: Acta Juridica, 2021, p. 203 – 242
https://doi.org/10.47348/ACTA/2021/a8

Abstract

Dale Hutchison co-authored two excellent articles on the contract– delict interface. Their focus was primarily on breaches of contract causing pure economic loss. This article extends the investigation to omissions which are in breach of contract and which cause physical harm to person or property. At the centre of the investigation is the Supreme Court of Appeal’s (majority) judgment in the case of Chartaprops 16 v Silberman 2009 (1) SA 265 (SCA). A harm-causing omission will be wrongful, for the purpose of delictual liability, only if it was in breach of a specific duty. To date, our law has recognised only a small number of such specific duties. The Chartaprops judgment seems to recognise another, arising – in a way which is not clearly explained in the judgment – from the contractual duties by which the harm-causer and certain third parties are bound. In a series of steps, this article develops an account of that duty, culminating in the following formulation, which is meant to capture both the duty’s ground and its content: ‘If a person has contracted with another person to perform a task and knows (or ought to know) that the other person has contracted with him to perform that task in order to discharge a delictual duty owed by the other person to one or more further persons, then he owes those further persons a specific duty, the breach of which constitutes a wrong for the purposes of Aquilian liability, not to cause harm to them by negligently having contracted with the other person to perform that task and then failing to perform it.’

Agency in South Africa: Mapping its defining characteristics

by | Jul 28, 2021 | ACTA, ACTA 2021

Agency in South Africa: Mapping its defining characteristics

Author G Glover

ISSN: 1996-2088
Affiliations: BA LLB PhD (Rhodes); Associate Professor, Faculty of Law, Rhodes University.
Source: Acta Juridica, 2021, p. 243 – 274
https://doi.org/10.47348/ACTA/2021/a9

Abstract

This article draws on contemporary trends in Anglo-American jurisdictions to propose a modernised analytical framework for agency law in South Africa. It first investigates the juridical basis of agency law, finding that the consensus is to see agency as a complex phenomenon that synthesises both internal consent and external power/liability models. Secondly, the article proposes certain essential conceptual features of agency, briefly discusses these features, and argues, with reference to comparative authority, how adopting these might facilitate a more complete understanding of agency in South Africa.

Recontextualising the teaching of commercial transactions law for an African university

by | Jul 28, 2021 | ACTA, ACTA 2021

Recontextualising the teaching of commercial transactions law for an African university

Author A Hutchison

ISSN: 1996-2088
Affiliations: BA LLB LLM PhD (Cape Town); Associate Professor, Department ofCommercial Law, University of Cape Town.
Source: Acta Juridica, 2021, p. 275 – 296
https://doi.org/10.47348/ACTA/2021/a10

Abstract

This article reflects on the changing political environment in South African higher education and offers one potential view of the future of contract law teaching in the twenty-first century. Specifically, the author discusses changes made to the final-level LLB course, Commercial Transactions Law, at the University of Cape Town. These changes were inspired by the #MustFall protest movements and also incorporated the requirements of the South African Council on Higher Education’s 2018 report on the LLB degree. In essence, this involved a recontextualisation of the component topics to speak to a broader range of student life experiences, as well as an attempt to incorporate more materials focused on social justice or which are characteristically ‘African’.

Authority by representation – a rule lacking a theory: A reappraisal of Makate v Vodacom (Pty) Ltd 2016 (4) 121 (CC)

by | Jul 28, 2021 | ACTA, ACTA 2021

Authority by representation – a rule lacking a theory: A reappraisal of Makate v Vodacom (Pty) Ltd 2016 (4) 121 (CC)

Author C Pretorius

ISSN: 1996-2088
Affiliations: BLC LLB (Pret) LLD (Unisa); Professor in the Department of Private Law, University of South Africa.
Source: Acta Juridica, 2021, p. 297 – 320
https://doi.org/10.47348/ACTA/2021/a11

Abstract

In Makate v Vodacom (Pty) Ltd 2016 (4) 121 SA (CC) the Constitutional Court had to consider the difficult question whether an agreement to negotiate compensation at a later date for an employee who had invented something for his employer was enforceable, where in the absence of later agreement the issue would be referred to the Chief Executive Officer of the employer for final determination. Although the court answered this in the affirmative, the more pressing issue for present purposes was whether the representative of the employer who had negotiated the agreement with the employee had the necessary actual or apparent authority to conclude the agreement. In dealing with the matter of authority, the apex court took an unconventional approach to ‘ostensible’ or ‘apparent’ authority: Whereas the basis of such authority has traditionally been seen as the doctrine of estoppel, the court held that the expressions ‘apparent authority’ and ‘ostensible authority’ have no bearing on estoppel as such, but rather refer to a form of actual authority arising from a representation of authority by the principal in respect of the agent. This article examines the court’s approach in that regard and concludes that, although the decision attracts criticism from a conceptual viewpoint, there is merit in such an approach if it is adapted and defined purely in terms of the reliance theory.

Contractual fairness: Conflict resolved?

by | Jul 28, 2021 | ACTA, ACTA 2021

Contractual fairness: Conflict resolved?

Author A Price

ISSN: 1996-2088
Affiliations: BBusSci LLB (Cape Town) BCL (Oxon) PhD (Cantab); Adjunct Associate Professor, Law Faculty, University of Cape Town; member of the Cape Bar, advocate of the High Court of South Africa.
Source: Acta Juridica, 2021, p. 321 – 342
https://doi.org/10.47348/ACTA/2021/a12

Abstract

In 2019 Dale Hutchison called upon the Constitutional Court to resolve the apparent conflict between certain of its judgments and those of the Supreme Court of Appeal relating to the most burning issue in South African contract law, namely, the extent to which a judge can refuse to enforce an otherwise valid contract on the grounds that it would be unduly harsh, unfair or unreasonable to do so. Two of the Constitutional Court’s judgments handed down simultaneously in 2020 – Beadica 231 CC v Oregon Trust and AB v Pridwin Preparatory School – answered Dale’s call. In Beadica, the notion that abstract values such as fairness, reasonableness and good faith serve as directly applicable standards that courts may use to control contractual content and enforcement was rejected. The established Barkhuizen test for public policy should be employed instead, ‘it was held’. Nonetheless Pridwin provides fresh impetus to the horizontal application of constitutional rights to contracting parties in terms of s 8(2) of the Constitution. The courts will have to use the latter tool carefully and incrementally, particularly in the context of commercial contracting, if the careful balance between contractual fairness and certainty achieved in Beadica is to be preserved.