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Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 275-296
Author(s):  
A Hutchison

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’.


Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 85-106
Author(s):  
J Barnard-Naudé

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’.


Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand

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.


Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 297-320
Author(s):  
CJ Pretorius

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.


Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 203-242
Author(s):  
A Fagan

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.’


Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 321-342
Author(s):  
A Price

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.


Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 3-36
Author(s):  
R Brownsword

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.


Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 57-82
Author(s):  
H MacQueen

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.


Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 177-202
Author(s):  
J du Plessis
Keyword(s):  

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.


Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 343-373
Author(s):  
H Scott

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.


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