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.

The textual layers of European contract law

by | Mar 31, 2020 | ACTA, ACTA 2019

The textual layers of European contract law 

Authors R Zimmermann

ISSN: 1996-2088
Affiliations: Honorary Professor of Law at the University of Edinburgh
Source: Acta Juridica, 2019, p. 165 – 199

Abstract

For the past four decades, lawyers in Europe have been fascinated by the idea of creating (or re-creating) a European private law. Contract law has, so far, been at the centre of attention. Various actors have shaped the development: the European legislature and the European Court of Justice as much as academic writers. National law reform has also contributed to a rapprochement of thinking patterns. One of the most interesting developments has been the creation of various sets of model rules, or restatements, of European contract law. It began with the elaboration of ‘Principles of European Contract Law’ by the ‘Lando’ Commission, a purely academic initiative, and it eventually led, in 2011, to the publication of a Proposal for a Regulation on a European Sales Law, ie the attempt to codify central parts of general contract law and sales law within the European Union. That Proposal was withdrawn by the European Commission in late 2014. Thus, there is now some time for reflection. The present essay attempts to sketch the various ‘textual layers’ that have accumulated in the quest for a code of European contract law. At the same time, it explains the background for a research project that attempts to provide a synthesis of the development.

Balancing ‘equality of respect’ with freedom of expression: The actio iniuriarum and hate speech

by | Mar 31, 2020 | ACTA, ACTA 2019

Balancing ‘equality of respect’ with freedom of expression: The actio iniuriarum and hate speech

Authors J Burchell

ISSN: 1996-2088
Affiliations: Emeritus Professor and Fellow of the University of Cape Town
Source: Acta Juridica, 2019, p. 203 – 227

Abstract

This essay begins with a brief tribute to Emeritus Professor Danie Visser, a very close friend and respected colleague. The essay then evaluates the common-law protection of dignity in the South African law of delict, as well as criminal law, and examines the role of the courts in balancing this right to individual dignity with freedom of expression against the backdrop of recent draft legislation aimed at curbing hate speech. The essay favours the established common-law protection of dignity (supplemented by existing statutory remedies) and questions the need for further legislation on hate speech. The author also highlights the role of education in preventing hate speech.