A Different Way of Saying: On Stories, Text, A Critical Legal Argument for Contractual Justice and the Ethical Element of Contract in South Africa

Abstract

This article takes a critical approach to South African contract law. Employing the post-modern concept of narrative truth it is argued that one can extract from the South African Law Commission’s texts on Unreasonable Stipulations in Contracts (at least) four stories about the South African law of contract. These stories are those of certainty, resistance, equity and the story of the text. The story of the text (ie, a fully legislated and delineated equity jurisdiction in contract law) was the one recommended to Parliament by the Law Commission. Parliament has however indefinitely suspended the reformative narrative since the Commission’s Report was tabled. The author argues that the courts have failed to take issue with the suspension of the (reformative) narrative. Contract law still tells the story of certainty and predictability In (a tentative) conclusion it is argued that, although the stories generated by the Law Commission’s investigation are organised along inescapable dualities, the (political) focus in global contract law has moved to an emphasis on the ethical element of contract. The article concludes with the writer’s story, which argues (with reference to the work of Drucilla Cornell and Karin van Marle) for an ethical approach to contract which supports the concepts of communicative freedom and Cornell’s exposition of the relationship between Kantian freedom and dignity. The writer’s story concludes that the emphasis on the ethical element of contract enjoins contracting communities to engage in deliberative (story-telling) practices which cannot await the story of the law. Finally, issue is briefly taken with the reasons why this is a critical legal argument.