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TitleThe harmonisation of good faith and ubuntu in the South African common law of contract
AuthorDu Plessis, Hanri Magdalena
SubjectBona fides
SubjectClassical law of contract
SubjectContractual autonomy
SubjectGood faith
SubjectHuman dignity
SubjectHuman dignity as empowerment
SubjectHuman dignity as constraint
SubjectKantian ethics
SubjectModern theory of contract law
SubjectOpen norms
SubjectPublic policy
SubjectRule of law
SubjectSanctity of contracts
SubjectSocial justice and transformation
SubjectSubstantive equality
SubjectTransformative constitutionalism
SubjectContracts -- South Africa
SubjectCommon law -- South Africa
SubjectGood faith (Law) -- South Africa
SubjectEquality before the law -- South Africa
SubjectRespect of persons -- Law and legislation -- South Africa
SubjectLaw -- South Africa -- History
SubjectConstitutional law -- South Africa
SubjectUbuntu (Philosophy)
Format1 online resource (vi, 447 leaves)
AbstractThe legal historical development of fairness in the South African common law of contract is investigated in the context of the political, social and economic developments of the last four centuries. It emerges that the common law of contract is still dominated by the ideologies of individualism and economic liberalism which were imported from English law during the nineteenth century. Together with the theories of legal positivism and formalism which are closely related to parliamentary sovereignty and the classical rule of law, these ideals were transposed into the common law of contract through the classical model of contract law which emphasises freedom and sanctity of contract and promotes legal certainty. This approach resulted in the negation of the court’s equitable discretion and the limitation of good faith which sustain the social and economic inequalities that were created under colonialism and exacerbated under apartheid rule. In stark contrast, the modern human rights culture grounded in human dignity and aimed at the promotion of substantive equality led to the introduction of modern contract theory in other parts of the world. The introduction of the Constitution as grounded in human dignity and aimed at the achievement of substantive equality has resulted in a sophisticated jurisprudence on human dignity that reflects a harmonisation between its Western conception as based on Kantian dignity and ubuntu which provides an African understanding thereof. In this respect, ubuntu plays an important role in infusing the common law of contract with African values and in promoting substantive equality between contracting parties in line with modern contract theory. It is submitted that this approach to human dignity should result in the development of good faith into a substantive rule of the common law of contract which can be used to set aside an unfair contract term or the unfair enforcement thereof.
AbstractPrivate Law
AbstractLL. D.
IdentifierDu Plessis, Hanri Magdalena (2017) The harmonisation of good faith and ubuntu in the South African common law of contract, University of South Africa, Pretoria,