Abstract
In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African common law of contract. Firstly, it is shown how the idea of good faith as an open norm in Roman law was inspired by Greek philosophy and it is argued that ubuntu as an underlying value of the customary law can infuse good faith in the common law of contract in similar fashion. Secondly, an important distinction between the two concepts is identified. Although both concepts promote contractual justice between the contracting parties, ubuntu entails a further duty to promote the social and economic well-being of the parties as well as that of the greater community. Hence, in contrast to good faith, ubuntu is concerned with the promotion of substantive equality in private dealings.
Highlights
In the previous article,[2] it was shown how the Romans realised that their existing formal and rigid laws could not address the community's changing legal needs due to the influx of foreign traders into Rome
It is shown how the idea of good faith as an open norm in Roman law was inspired by Greek philosophy and it is argued that ubuntu as an underlying value of the customary law can infuse good faith in the common law of contract in similar fashion
In contrast to good faith, ubuntu is concerned with the promotion of substantive equality in private dealings
Summary
In the previous article,[2] it was shown how the Romans realised that their existing formal and rigid laws could not address the community's changing legal needs due to the influx of foreign traders into Rome. They introduced flexible legal procedures and a more normative approach to these legal transactions to ensure better contractual justice. It was argued that in a similar way, ubuntu can be used to address legal pluralism in the South African legal system and its application as an underlying value of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) could result in the better use of the open norm of good faith in the common law of contract. This article concludes by summarising the findings in both articles
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