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.

Interference without ownership: The theft of incorporeal money in the South African law of unjustified enrichment

by | Jul 28, 2021 | ACTA, ACTA 2021

Interference without ownership: The theft of incorporeal money in the South African law of unjustified enrichment

Author H Scott

ISSN: 1996-2088
Affiliations: Tutorial fellow of Lady Margaret Hall and professor of private law in the
Oxford Law Faculty.
Source: Acta Juridica, 2021, p. 343 – 373
https://doi.org/10.47348/ACTA/2021/a13

Abstract

First National Bank of Southern Africa v Perry, Nissan South Africa v Marnitz NO and Absa Bank v Lombard Insurance, as well as Trustees, Estate Whitehead v Dumas and Absa Bank v Moore, together amount to a concerted attempt on the part of South African courts to provide victims of the theft of incorporeal money with adequate redress. However, it has proved difficult to find a satisfactory juristic explanation for this series of decisions. This chapter shows that a model organised around the extension of the vindicatio to incorporeal money is unworkable. Instead, having considered briefly a second possibility, namely, the English constructive trust, this chapter advances an analysis of the plaintiff’s claim to the stolen money solely in terms of the non-consensual enrichment (that is, enrichment other than by deliberate conferral) of the defendant at their expense. Apart from its superior explanatory power, such an approach offers a blueprint for future development, insofar as it opens the way to the recognition of a secured claim where the proceeds of stolen money have been used to discharge the thief ’s pre-existing secured debts: the doctrine of subrogation to extinguished rights. This chapter closes by considering the implications of these conclusions for wider debates about the proper size and shape of the law of unjust enrichment.

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.