South African Law Of Contract Research Articles

Die matigende rol van die waardes onderliggend aan die grondwet in die Suid-Afrikaanse kontraktereg

With the adoption of the interim constitution in 1993, much was made of the transformative function which the new constitution, and more particularly, the bill of rights, would fulfil. There were calls to reform the law of contract, whether by means of codification, piecemeal legislation or judicial reform. This contribution focuses on judicial reform of the law of contract and the apparent lack of change since the advent of the new constitutional dispensation. The search for a means to mitigate the strict application of the law of contract is not new. The Romans found that strict application of the law of contract could sometimes lead to unfair results. Eventually, Roman law developed a remedy, known as the exceptio doli, to mitigate the strict application of the law of contract. The courts in South Africa, from the outset, had to deal with instances where strict application of the law of contract would apparently lead to harsh results. To this end, the courts also turned to the Roman exceptio doli, but eventually, the appellate division ruled in Bank of Lisbon and South Africa Ltd v De Ornelas (1988 3 SA 580 (A)) that the exceptio doli is not part of the South African law of contract. Since then, and particularly since the advent of the new constitutional dispensation, parties have sought to rely on the values underlying the constitution, good faith, reasonableness and equity, in an attempt to seek redress from what they viewed as the harsh effects of the law of contract. Some trends began to develop: firstly, in some instances, judges displayed a shocking lack of knowledge of the law of contract; secondly, parties or the courts sometimes unnecessarily invoked the constitution when the common law of contract would have produced the same result; thirdly, a clear pattern of conservative majority and liberal minority opinions emerged in judgments of the courts; and lastly, the courts have tended to follow an all-or-nothing approach to matters dealing with contracts. However, in a minority opinion in Beadica 231 CC v Trustees, Oregon Trust (2020 5 SA 247 (CC)), Froneman J proposed a more nuanced approach in terms of which contractual matters can be resolved by proportionate adjustment of the contract. This kind of approach has been followed in Germany and it is proposed that the German concept of ergänzende Vertragsauslegung can guide the courts in South Africa to give greater effect to the values underlying the constitution, good faith, reasonableness and equity.

DIE REGSTEORETIESE GRONDSLAG VAN DIE INTEGRASIEREËL IN DIE SUID-AFRIKAANSE KONTRAKTEREG

This article focuses on an extensive critical analysis of the legal-theoretical basis of the parol evidence rule in the South African law of contract. Certain conclusions will be made from such an analysis in terms of which it will be argued that the parol evidence rule qualifies as a legal rule and that it can therefore be validly abolished or modified by the legislature.

A Gain-based Remedy for Breach of Contract in English Law: Some Lessons for South African Law

A gain-based remedy for breach of contract is aimed at taking away the profits acquired through breach of contract. Traditionally, contractual damages can be claimed only if the breach caused the plaintiff patrimonial loss. There is an assumption that breach of contract causes a loss to the plaintiff, and as a result the defendant should compensate the plaintiff. However, in the past, courts have been confronted with cases where the opposite of this assumption is true. This is in instances where a defendant breaches a contract and gains profit as a result of that breach, whereas the plaintiff suffers little or no patrimonial loss. Unfortunately, in these circumstances the plaintiff may be left with no remedy or legal recourse for the breach, while the defendant may keep the profits generated as a result of the breach. However, in English law the courts have recognised a gain-based remedy in the circumstances outlined above, allowing the disgorgement of such ill-gotten profits. But a similar remedy has not yet gained recognition in the South African law of contract. The purpose of this article is to explore how South African law can draw some valuable lessons from English law in developing and recognising a gain-based remedy for breach of contract in order to deal with the profits generated through breach of contract.

Form and substance in the Constitutional Court: Whither contract law’s policy after apartheid?

This article enquires into commitments of substance and form in contract law after apartheid. The argument begins with an overview of the substance and form argument as presented by Duncan Kennedy in 1976 and applied to the South African law of contract by Alfred Cockrell in 1992. Kennedy and Cockrell’s argument that commitments of form follow commitments of substance in private-law adjudication generally, and in contract-law adjudication specifically, is mapped onto Karl Klare’s 1998 argument that transformative constitutionalism necessitates a commitment to the ‘postliberal’ in both formal and substantive terms. The argument then proceeds to a reading of the majority judgment in the Constitutional Court in Beadica 231 CC & others v Trustees for the time being of the Oregon Trust & others. The discussion illustrates how form still follows substance in the South African law of contract in a constitutional era, and how the privileged policy position remains that of rule-based formal commitments and individualist substantive commitments. The article concludes with the assertion that the dominance of the individualism/rules position is inconsistent with transformative constitutionalism’s commitment to a postliberal legal order.

Bona fides and ubuntu – A response to Dale Hutchison

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’.

Yet Another Call for a Greater Role for Good Faith in the South African Law of Contract: Can we banish the Law of the Jungle, while avoiding the Elephant in the Room?

This article examines the current approach of the South African courts to the role of good faith or bona fides in contracts, as well as the courts’ stated reasons for this approach. The article specifically examines how arguments based on good faith have fared in the Constitutional Court to date, and the prospects for law reform to emanate from that court in the near future. The author suggests an understanding of good faith which he believes is in line with the Constitution of the Republic of South Africa, 1996 and argues that in terms of such an understanding of a robust good faith doctrine the legal fraternity or the courts can avoid some of the dangers that the judges of the Supreme Court of Appeal have warned about in this context in recent years. The author shares some concluding thoughts on the pressing need for law reform with respect to the role and presence of good faith in contracts.

Die Moontlike Regshervorming van die Integrasiereël in die Suid-Afrikaanse Kontraktereg deur middel van die Leerstuk van Rektifikasie

As far back as the early twentieth century the Appellate Division in Cassiem v Standard Bank of SA Ltd, held that:
 “We are bound by the English rules of evidence and the question has therefore to be decided according to English law, the rule being that parol evidence is not allowed to alter, vary, or contradict a written instrument.”
 The integration rule has always been an integral part of the South African law of contract where the admissibility of the presentation of extrinsic evidence of previous or collateral agreements was considered. In 1998 an extensive report was brought out by the South African Law Commission wherein certain recommendations were made to the Minister of Justice pertaining to, inter alia, the application of the integration rule in the South African law of contract. The Law Commission was of the opinion that the disadvantages of the integration rule outweighed the advantages of legal certainty and finality and recoomended that the rule be abolished and that more subjective evidence should be allowed to ascertain the true intention of the parties. The recommendations by the Law Commission however apparently died a slow death and there has been no attempt since to abolish or modify the rule in the South African legal system.
 In 'n previous article the view was held that the integration rule is based on a legal rule or legal fiction and that it can therefore be validly abolished or modified by legislation. Legislation is however a drastic step which should only serve as a last resort and other alternatives should first be considered. This article considers one such a possible alternative, namely the remedy of rectification. The focus will be in particular on a brief discussion of the application of the integration rule in the South African law of contract, the field of application and scope of rectification, the relation between rectification and the integration rule, and, lastly, if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. The conclusion is that the remedy of rectification would in all probability not in all instances be able to avoid the strict application of the integration rule and that legislation seems to be the only workable alternative to abolish or modify the integration rule in the South African law of contract.

Editorial

The third issue of PER contains ten articles and one case note on a variety of themes. Shaun de Freitas shares his views on improper irreligious proselytism in religious rights and freedoms jurisprudence within a public school context and introduces an equitable and accommodative understanding of proselytism, which places the potentially harmful effects of both religious and irreligious beliefs on an equal footing with each other. Yvette Joubert and Juanitta Calitz analyse the role of the so-called private examinations in South African insolvency law and deal with the question of whether or not section 417 of the Insolvency Act 24 of 1936 is adequately and effectively framed in order to fulfil its intended purpose in South African law. Howard Chitimira gives a historical overview of the regulation of market abuse in South Africa. He concludes his contribution with a discussion by isolating certain flaws in the previous market abuse laws that were re-incorporated into the current South African market abuse legislation and makes recommendations in that regard. Juanita Jamneck discusses the contemporary meaning of the word "spouse" and the recognition of the family as an important social institution in the light of the provisions of the Intestate Succession Act 81 of 1987. Shannon Bosch reviews the scope and nature of "direct participation in hostilities" in international humanitarian law in the light of the Interpretive Guide on the Notion of Direct Participation in Hostilities issued by the International Committee for the Red Cross. The primary objective of the article by Vinesh Basdeo is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution. Eddie Hurter and Tana Pistorius examine the new .Africa Top Level Domain - an Africa initiative to ensure that Africa gets its rightful place in the global network. Geo Quinot tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. Thino Bekker discusses the scope and application of the integration rule in the South African law of contract and deals with the question if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. Yeukai Mupangavanhu discusses the case of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) in the light of the exemption clauses in the Consumer Protection Act 68 of 2008 (CPA). The case note, which is also the final contribution, by Martha Radebe evaluates the unconstitutional practices of the Judicial Service Commission under the guise of judicial transformation as they came to the fore in the case of the Cape Bar Council v Judicial Service Commission [2012] 2 ALL 143 (WCC).
 

Die interpretasiereël in die Suid-Afrikaanse kontraktereg (Deel 1)

The parol evidence rule in the South African law of contract consists of two different subrules. The one subrule deals with the extent to which a written contract may be regarded as the sole memorial of its terms and will be referred to as the “integration rule” in this article. Closely related to the integration rule is the so-called “interpretation rule”. The narrow definition of this rule entails that no evidence may be adduced to alter the clear and unambigious meaning of a written or verbal agreement. There is, however, also a wider definition that may be attributed to the interpretation rule, namely that it entails when and to what extent extrinsic evidence may be adduced to explain or alter the wording of a contract. In the past decades, there has been a development in the application of the interpretation rule in the South African law of contract from a strict formalistic textual approach to a more liberal contextual approach in terms of which more extrinsic evidence is allowed in order to interpret the written contract between the parties. In the first part of this article, the subjective and objective approaches to interpretation will be contrasted and the historical background of the interpretation rule will be briefly discussed. There will also be a critical analysis of the development and current application of the interpretation rule in the South African law of contract.

Specific performance as a primary remedy in the South African law of contract

Specific performance is a primary remedy for breach of contract available for the aggrieved party. This order emphasises the performance of contractual obligations. Although the plaintiff can elect to claim specific performance from the defendant, the court has a discretion to grant or decline the order of specific performance. The discretion must be exercised judicially and does not confine on rigid rules. Courts decide each case according to its own facts and circumstances. Plaintiff has a right of election whether to claim specific performance from the defendant or damages for breach of contract. The defendant does not enjoy any choice in this matter. As a general rule, specific performance is not often awarded in the contract of services. However, recent developments have demonstrated that specific performance will usually be granted in employment contracts if there is equality of bargaining power among contracting parties and such order will not produce undue hardship to the defaulting party. Public policy generally favours the utmost freedom of contract and requires that parties should respect or honour their contractual obligations in commercial transactions. Public policy is rooted in the constitution and can sparingly be used to strike down contracts. Specific performance should not continue to be a primary remedy for breach of contract. Contracting parties should be allowed to resile from the contract and use damages as a remedy for breach of contract.

CONSTRUCTION GUARANTEES: FINALLY CLOSING THE DOOR ON EXTRANEOUS DEFENCES Coface South Africa Insurance Co Ltd v East London Own Haven t/a Own Haven Housing Association 2014 (2) SA 382 (SCA)

The issuing of performance bonds or construction guarantees in terms of a building contract may hold important consequences for the parties to a construction guarantee. Recently construction guarantees have received much attention from our courts and some of these cases even proceeding to the Supreme Court of Appeal. There may be various reasons for this sudden escalation in litigation with construction guarantees as the subject matter. One of the reasons may be due to numerous major construction projects that have been undertaken in the last few years in South Africa. Notable examples of these major construction projects include the building of stadia for the 2010 FIFA Soccer World Cup, the Gautrian Project, and the Gauteng Freeway Improvement Project. One of the aspects of construction guarantees that our courts has had to deal with was the nature of construction guarantees. The nature of construction guarantees is not only of academic interest but also has very important practical implications. Building, engineering and construction contracts such as the family of New Engineering Contracts and The Joint Building Contracts Committee agreements make provision for the employer or the party commissioning the construction works (“the works”’) to place a contractual obligation on the contractor to furnish a construction guarantee. Shortly after the award of the construction contract (“the underlying contract”), the contractor will instruct its insurer or banker to issue such a construction guarantee to the benefit of the employer. From the employer’s perspective, the construction guarantee serves a dual purpose: firstly, the willingness of a financial institution or insurer to issue such a construction guarantee is, to a degree, an indication of the contractor’s financial welfare. Secondly, in the event of the contractor's default, the construction guarantee enables the employer to gain immediateaccess to funds to properly complete the works in terms of the underlying contract. A contractual relationship is created by the construction guarantee between the employer and the issuer thereof. When properly drafted, a construction guarantee entitles an employer to demand payment from the issuer unconditionally upon the occurrence of a specific event. The liability of the issuer of the construction guarantee is subject only to the employer complying with the terms and conditions contained in the construction guarantee. Normally, the employer is required to issue a certificate in terms of which it is confirmed that the contractor is in default of the building contract or underlying contract and therefore the employer demands payment in terms of the construction guarantee. The main advantage that a construction guarantee offers to an employer is when enforcing the construction guarantee, the issuer thereof may not raise defences of an extraneous nature. This prevents protracted litigation over complex factual disputes. Fraud in such circumstances that makes it obvious is the only defence the issuer of a construction guarantee may raise to avoid liability under the construction guarantee. However, the Supreme Court of Appeal in Dormell Properties 282 CC v Renasa Insurance Co Ltd reopened again the possibility of raising extraneous defences. The Dormell judgment caused much uncertainty on whether extraneous defences may be raised to avoid liability in terms of a construction guarantee. The confusion regarding the true legal position was further exacerbated by the fact that in subsequent cases involving construction guarantees, the Supreme Court of Appeal chose not to overturn the Dormell case but rather to distinguish the facts of subsequent cases from Dormell. This case note therefore deals with the latest reported judgment on construction guarantees delivered by the Supreme Court of Appeal in Coface South Africa insurance Co Ltd v East London Own Haven t/a Own Haven Housing Association (2014 (2) SA 382 (SCA)). This case is of particular interest because the Supreme Court of Appeal unequivocally held that its judgment in Dormell was clearly wrong. This judgment has now once and for all put the question of whether or not extraneous defences may be raised in order to avoid liability under a construction guarantee to bed. The court also once again confirmed that the English doctrine of consideration does not form part of the South African law of contract.

The possible legal development of the intergation rule in the South African law of contract by means of the doctrine of rectification

Article in AfrikaansAs far back as the early twentieth century the Appellate Division in Cassiem v Standard Bank of SA Ltd, held that:“We are bound by the English rules of evidence and the question has therefore to be decided according to English law, the rule being that parol evidence is not allowed to alter, vary, or contradict a written instrument.”The integration rule has always been an integral part of the South African law of contract where the admissibility of the presentation of extrinsic evidence of previous or collateral agreements was considered. In 1998 an extensive report was brought out by the South African Law Commission wherein certain recommendations were made to the Minister of Justice pertaining to, inter alia, the application of the integration rule in the South African law of contract. The Law Commission was of the opinion that the disadvantages of the integration rule outweighed the advantages of legal certainty and finality and recoomended that the rule be abolished and that more subjective evidence should be allowed to ascertain the true intention of the parties. The recommendations by the Law Commission however apparently died a slow death and there has been no attempt since to abolish or modify the rule in the South African legal system.In 'n previous article the view was held that the integration rule is based on a legal rule or legal fiction and that it can therefore be validly abolished or modified by legislation. Legislation is however a drastic step which should only serve as a last resort and other alternatives should first be considered. This article considers one such a possible alternative, namely the remedy of rectification. The focus will be in particular on a brief discussion of the application of the integration rule in the South African law of contract, the field of application and scope of rectification, the relation between rectification and the integration rule, and, lastly, if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. The conclusion is that the remedy of rectification would in all probability not in all instances be able to avoid the strict application of the integration rule and that legislation seems to be the only workable alternative to abolish or modify the integration rule in the South African law of contract.Keywords: abolish; common intention; extrinsic evidence; integration rule; law of contract; legislation; mistake; modify; rectification; written contract.

The possible legal development of the intergation rule in the South African law of contract by means of the doctrine of rectification

Article in AfrikaansAs far back as the early twentieth century the Appellate Division in Cassiem v Standard Bank of SA Ltd, held that:“We are bound by the English rules of evidence and the question has therefore to be decided according to English law, the rule being that parol evidence is not allowed to alter, vary, or contradict a written instrument.”The integration rule has always been an integral part of the South African law of contract where the admissibility of the presentation of extrinsic evidence of previous or collateral agreements was considered. In 1998 an extensive report was brought out by the South African Law Commission wherein certain recommendations were made to the Minister of Justice pertaining to, inter alia, the application of the integration rule in the South African law of contract. The Law Commission was of the opinion that the disadvantages of the integration rule outweighed the advantages of legal certainty and finality and recoomended that the rule be abolished and that more subjective evidence should be allowed to ascertain the true intention of the parties. The recommendations by the Law Commission however apparently died a slow death and there has been no attempt since to abolish or modify the rule in the South African legal system.In 'n previous article the view was held that the integration rule is based on a legal rule or legal fiction and that it can therefore be validly abolished or modified by legislation. Legislation is however a drastic step which should only serve as a last resort and other alternatives should first be considered. This article considers one such a possible alternative, namely the remedy of rectification. The focus will be in particular on a brief discussion of the application of the integration rule in the South African law of contract, the field of application and scope of rectification, the relation between rectification and the integration rule, and, lastly, if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. The conclusion is that the remedy of rectification would in all probability not in all instances be able to avoid the strict application of the integration rule and that legislation seems to be the only workable alternative to abolish or modify the integration rule in the South African law of contract.Keywords: abolish; common intention; extrinsic evidence; integration rule; law of contract; legislation; mistake; modify; rectification; written contract.

The Current Status of Exemption Clauses in the South African Law of Contract

Exemption clauses are used in contracts to exclude liability that ascribes to a contractant under normal circumstances. They are often incorporated in the standard form contracts by the service providers to the detriment of the other contracting party. As a general principle, exemption clauses are enforceable as they reflect an agreement between contracting parties. Exemption clauses that are contrary to public policy are invalid and unenforceable. They are often struck down by a court. Public policy nullifies agreements that are offensive in themselves. It is now rooted in the Constitution and the fundamental values it enshrines. They include human dignity, the achievement of equality, the advancement of human right, freedoms, non-racialism and non-sexism. Both Consumer Protection Act and National Credit Act have exclusion clauses in certain agreements to achieve fairness between contracting parties. Consumer Protection Act creates a general standard of fairness by listing a variety of prohibited terms and terms which are presumed to be unfair for the benefit of the consumers. National Credit Act also controls the exemption clauses in order to ensure or facilitate the fair, reasonable and valid conclusion of contracts. Exemption clauses are no longer the prerogative of the contracting parties. Sometimes, the exemption clauses in a contract need to be pointed out to the other party or consumer. The principles of fairness, reasonableness and constitutional values have to be considered when courts decide on the validity of exemption clauses. Consumer Protection Act, National Credit Act and Constitution have altered the use of exemption clauses in the law of contract to ensure fairness between contracting parties. DOI: 10.5901/mjss.2014.v5n9p164

AN INTERPRETIVE ACCOUNT OF UNCONSCIONABILITY IN TRUST LAW

The principle of public policy and factors such as fairness, reasonableness and good faith have – since the introduction of constitutionalism in South African law – become the cornerstone of the law and of its impact on all relationships – even therelationships in contracts. One such development is the assimilation of the doctrine of unconscionability in contract law. In this article, this concept, within the context of a trust formed by way of contract, is investigated. While the doctrine ofunconscionability is not without controversy, the question arises as to whether it has any role to play in trust law. The two-pronged approach traditionally used to determine the presence of an unconscionable contract or term is evaluated in light of its potential application in the case of trust deeds. The author submits that the incorporation of the doctrine will be advantageous in the developmental process in respect of a new constitutional trust-law order that is in harmony with the spirit,purport and objects of the Constitution. The doctrine of unconscionability has become a reality in South African law of contract; it should therefore also be embraced in the establishment of the trust as a dynamic tool in the commercial environment.

Yet Another Call for a Greater Role for Good Faith in the South African Law of Contract: Can we Banish the Law of the Jungle, while Avoiding the Elephant in the Room?

Yet Another Call for a Greater Role for Good Faith in the South African Law of Contract: Can we Banish the Law of the Jungle, while Avoiding the Elephant in the Room?

Of Dorothy’s Dog, ‘Poststructural’ Fairy Tales … and the Real: Power, Poverty and the General Principles of the South African law of Contract

South African precedent does not allow for the consideration of the validity or enforceability of a contract in terms of the good faith principle. Yet, the principle of good faith permeates the foundational ideals and the spirit of South Africa’s post-apartheid Constitution. After re-emphasising the by now trite point that all legal rules have distributive consequences and that the common law represents a set of political choices, the article discusses the philosophical history of good faith and defends it as the primary transformative ethical device of the general principles of contract law, arguing that an elevated status for good faith in contract is implicit in the post-liberal reading of the Constitution and the ills that such a reading seeks to address. With reference to the work of Michel Foucault, the article concludes that curial consideration of the question whether a party to a contract has abused her bargaining power, forms a critical part of the transfo mative work that contract law is (also) constitutionally mandated to do.

Oh, What a Tangled Web We Weave: Hegemony, Freedom of Contract, Good Faith and Transformation - Towards a Politics of Friendship in the Politics of Contract

The article is an historical excavation of the hegemonic ordering in the South African law of contract in which freedom of contract remains the privileged fundamental value at the expense of good faith. The article argues for an increased role for good faith in the South African law of contract as a matter of constitutional congruence.

To Wonderland Through the Looking-glass: Conceiving a Critical Legal Argument for Contractual Justice in the South African Law of Contract

The aim of this paper is to identify the possible substructure (looking glass/es) of a critical legal argument for contractual justice (Wonderland) in the South African law of contract. South African contract law still fails, ten years after the constitutional transformation, to reflect the constitutional ideals of freedom, equality and human dignity in an acceptable manner. I argue that this disposition places a question mark over the legitimacy of contract law and marginalizes opportunities for the social change envisaged by the Constitution. The paper explores Duncan Kennedy’s Form and Substance-argument and indicates that the reluctance to accommodate these values may be attributable to the fact that the majority of role-players position themselves on the individualism/rules side of Kennedy’s continuum – a paradigm that perceives the law of contract as a body of positivistic rules to be applied neutrally and regardless of the social or socio-economic distortions its application may generate. In an attempt to move away from this traditional approach, the privileged paradigm is criticised. A typical CLS-approach is followed which employs sociology, psychological jurisprudence and game theory to criticise the law from outside the restrictive realms of law itself. Simultaneously, I attempt to illuminate the argument for a shift (step through the looking glass) to another paradigm. I conclude that our judiciary finds itself in a position similar to that of Plato’s prisoners in the cave and will not reach the point where they apply relevant (constitutional) values directly to contractual disputes. The State is thus responsible for infusing contract law with contractual justice, by implementing legislation to this effect in order to limit the hegemonic consequences of the judiciary’s obsession with freedom of contract and utopian rules, which fail in reality to further the ideal of justice.

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

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.