Good Faith and Equity

Abstract

In the law of contract, there is one specific device that, more than any other, infused this branch of the law with an equitable spirit: the concept of bona fides, or good faith. Bona fides was one of the most fertile agents in the development of Roman contract law. In relation to iudicia stricti iuris it gained its influence as a result of a specific standard clause, inserted into the procedural formula at the request of the defendant. This clause was known as an exceptio doli. Exceptio doli was a powerful instrument for bringing about a just solution, for it invited an answer which located dolus not so much in personal misconduct, but rather in an inequity or injustice that would flow from the action being countenanced. Ultimately, therefore, it gave the judge an equitable discretion to decide the case before him in accordance with what appeared to be fair and reasonable. This chapter discusses the role of exceptio doli, dolus, and bona fides in South African contract law.