The research in this dissertation investigates the impact of pacta sunt servanda in the South African law of contract. The notion of good faith has an active role to play in ensuring that the law remains sensitive to and in tune with the needs of society. Secondly, terms misleading or deceiving the consumer; or subjecting the consumer to fraudulent conduct. Views Read Edit View history. It requires that any notice or provision that purports first, to limit in any way the risk of the supplier; secondly, to constitute an assumption of risk by the consumer; thirdly, impose an obligation on the consumer to indemnify the supplier; or lastly to be an acknowledgement of any fact by the consumer, to be drawn to the attention of the consumer in a conspicuous manner and form that is likely to attract the attention of an ordinary alert consumer, having regard to the circumstances. The Court concluded that Naidoo had discharged his onus of proving a delictual claim against the hotel and that the disclaimer notices and the exemption clauses were not a good defence.
Can we banish the law of jungle, while avoiding the elephant in the room? Die doel van hierdie artikel is om te bepaal of die regspaternalisme onderliggend tot die uitvaardiging van die WOV wel daarin slaag om van die kritiek aan te spreek wat in die verlede teen die gemeenregtelike kontraktereg geopper is, by uitstek ten opsigte van die billikheidskwessie. First, whether the clause itself is unreasonable; and secondly, if the clause is reasonable, whether it should be enforced, taking into account circumstances which prevented compliance with the term. The notion that agreements seriously entered into must be honoured is an age-old principle which has found recognition in South African law. The CPA, together with the Constitution, is nonetheless exerting a strong impact upon contract law. Vattel promoted the view that ‘every body bound himself for the future only on the stipulation of the presence of the actual conditions’ and so ‘with a change of the condition also the relations originating from the situation would undergo a change’.
The importation sefvanda section 27 1 into the instalment sale agreement afforded the applicant protection who otherwise could have been prejudiced by the cancellation of the contract and the forfeiture of the monies paid. Can we banish the law of jungle, while avoiding the elephant in the room?
Dissertation pacta sunt servanda
Hopkins SALJ Shnt respondent went to a hospital and signed a standard-form contract incorporating a clause that excluded liability for any damages suffered as a result of the negligence of the nursing staff or employees of the appellant. If, however, sunt contractual provision is capable of implementation in a manner that is against public policy but the tenor of the provision is neutral then the offending tendency servanda absent. The principles of freedom and sanctity of contract are rooted in the political and economic philosophies of laissez-faire liberalism and individualism.
There is therefore a need to develop fairness so that it becomes a broad requirement of our law in contractual relations.
It is clear that in this dissertation the debtor never managed to effect such an oblatio realis. The copyright in this work vests in the University of Pretoria. The provisions of the CPA are likely to force courts to reshape the established principles and doctrines of contract law so that they can be in conformity herewith. Man has corrupted and destroyed it! The case law in this research highlights the fact that courts are in favour of contractual validity and have accepted pacta sunt servanda as a cemented principle in the South African law of contract.
The CPA attempts to achieve a balance between relevant principles and policies so as to satisfy prevailing perceptions of justice and fairness, as well as economic, commercial and social expediency.
What’s pacta with that? Naude rightly opines that the provisions dealing with unfair contractual terms are lacking in some respects, with the result that the problems faced by consumers have not been sufficiently addressed in accordance with international best practices.
The last part will include a conclusion. From Wikipedia, the free encyclopedia. Once a court is satisfied that the contract dissertattion freely entered into with the intention to create binding obligations, it should uphold and enforce the contract based on the principle of pacta sunt servanda.
The argument that provisions dealing with unfair contractual terms needs to be amended, is pertinent to the realisation of consumer rights in South Africa. Common law is thus an uncodified pactq of law that is developed through the doctrine of stare decisis.
Public policy needs further development to fully accommodate fairness and equity.
Browsing Dissertations – FacLaw by Subject “Pacta sunt servanda (International law)”
The question that arises is whether fairness and equity are fully accommodated under the rubric and scope of public policy.
The common law foundational principles of contract law are explained and the impact of the Constitution on these principles is analysed. Although the common law of contract is trying to establish a balance between the sanctity of contract on the one hand, and the interests of the weak contracting party on the other hand, the balance has not yet been achieved. If the parties to a treaty had contemplated for the disseetation of the changed circumstances, the doctrine does not apply and the provision remains in effect.
The impact of pacta sunt servanda in the law of contract
It is argued that healthy legal paternalism is crucial in any given society as it can be a vehicle for addressing the problem of balancing sanctity of contract with fairness.
In United Reformed Church, De Doorns v President of the Republic of South Africa and Others, 92 the matter was primarily concerned with the validity of the provisions of clause 16 in the notarial lease agreements. Die Wet op Verbruikersbeskerming 68 van WOV het ten doel om, onder andere, die sosiale en ekonomiese belange van Suid-Afrikaanse verbruikers te bevorder, billike besigheidspraktyke aan te moedig, en verbruikers teen gewetenlose, onregverdige en onbehoorlike besigheids-praktyke te beskerm.
Despite this however, the judgments discussed below indicate that the tide is now turning towards fairness. However, the effectiveness of the CPA in doing so remains to be seen.
The competing common law foundational values are discussed with particular emphasis on the principles of sanctity of contract and freedom of contract. Although the provisions of the CPA dealing with improperly obtained consensus overlap considerably with the common law, Hutchison and Pretorius rightly argue that the substantive provisions of the CPA go further than the existing common law.
Time limitation clauses in insurance contracts and exemption clauses in relation to private health care, are sometimes at odds not only with the value of equality, but also with the values of dignity and freedom.