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 Romans realised that their existing formal and rigid laws could not address the changing legal needs of the community due to the influx of foreigners (especially foreign traders) into Rome. In reaction to the changing commercial environment, they introduced flexible legal procedures and a more normative approach to these legal transactions to achieve fairness and justice between the contracting parties. This worked so well that the new flexible procedures and normative principles were transferred to the existing formalistic law. Gradually the existing ius civile became subject to a more normative interpretation in the interests of justice through the use of the open norm of good faith. It is 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 constitutional value could result in the better use of the open norm of good faith to address contractual unfairness.
Highlights
History as a narrativeIn Ancient Roman Lawyers, Tuori[2] employs three examples to show how Roman law scholars interpret Roman historical sources to support their modern ideals
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
It is 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 constitutional value could result in the better use of the open norm of good faith to address contractual unfairness
Summary
The exact age and origin of the bonae fidei actions are unknown and contested.[43]. The generally accepted theory is that these actions were introduced by the peregrine praetor, who had jurisdiction over disputes between foreigners.[44]. Some historical context of the pre-existing Roman law is necessary to understand where the bonae fidei actions fit into the greater Roman law history
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