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.

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.