Browsing by Author "Hutchison, Dale"
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- ItemOpen AccessAn analysis and critique of secured lending in South African law, including cession in securitatem debiti as a means to secure the repayment of loans for consumption(2022) Kariem, Adnaan; Gutuza, Tracy; Hutchison, DaleThe thesis critiques South African secured lending laws by examining the contractual basis on which money is loaned and its repayment is secured, focusing on syndicated loans. The loan of money constitutes a loan for consumption in terms whereof the lender passes legal title to its money to the borrower, who must return the same number of units in the same currency, with or without interest. The law on loans for consumption is based on Roman law and Roman-Dutch law. The thesis analyses the principles whereby senior and mezzanine lenders, acting in a syndicate, lend money to a borrower in a loan for consumption where the repayments and security rights are ranked. The internationalisation of standard-form loan agreements is discussed, and some English law lessons are analysed. The principles that govern the legal nature, purpose and function of security rights in rem and in personam, and specifically security rights in syndicated loans, are analysed. In law, a security right is created when an asset is appropriated to a debt as contemplated by the common law and the Insolvency Act 24 of 1936. Security rights must be accessory to a valid principal debt. Insolvency law treats cessionaries as secured creditors and holders of guarantees as concurrent creditors. The principles of the law of cession, and the pledge and cession in securitatem debiti of rights in personam, including the theories that underly it, namely, the pactum fiduciae theory and the pledge theory, found security in personal rights and are measured against the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Secured Transactions, Vienna, 2019, the English law on charges and Article 9 of the American Uniform Commercial Code. A number of deficiencies and inconsistencies in our security rights laws are identified, including incongruency, the absence of a coherent and uniform security rights system, and adverse insolvency law consequences for the cedent on the cessionary's insolvency arise from applying the pactum fiduciae theory. I conclude that the time is opportune to codify and reform South African law on secured lending to remedy the identified deficiencies and inconsistencies.
- ItemOpen AccessBack to basics: Reliance damages for breach of contract revisited(Juta Law, 2004) Hutchison, DaleMany years ago Professor D J Joubert suggested that there was no real distinction in principle between positive and negative interesse and that the terms should be avoided because they were likely to cause confusion ('Negatiewe interesse en kontrakbreuk' (1976) 39 THRHR 1 at 13-14). More recently ajudge has defended the distinction as a practical one (Horwitz AJ in Masters v Thain t/a Inhaca Safaris 2000 (1) SA 467 at 473nl). That case is the latest in a series grappling with the question whether or to what extent the victim of a breach of contract may elect to claim damages measured according to its negative rather than its positive interest (see Probert v Baker 1983 (3) SA 229 (D); Svorinic v Biggs 1985 (2) SA 573 (W); Hamer v Wall 1993 (1) SA 230 (T); Mainline Carriers (Pty) Ltd vJaad Investments CC 1998 (2) SA 468 (C); Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours 1998 (4) SA 802 (W); Masters v Thain (supra)). The cases reveal such a wide variety of judicial opinion on these points - particularly as regards which losses are covered by the terms positive and negative interest - that one cannot help but begin to share Professor Joubert's misgivings about the usefulness of the distinction. After the decision in Probert v Baker - the first in the series of cases just mentioned - Professor Gerhard Lubbe of Stellenbosch University wrote a very helpful article in which he attempted to clear up some of the misconceptions and confusion apparent from that decision ('The assessment of loss upon cancellation for breach of contract' (1984) 101 SALJ 616). That article has proved most influential: it has been cited in almost every subsequent case dealing with the issue, by judges on either side of the debate. It is not an easy read, however, and at times one is left with the uncomfortable feeling that its arguments have not been properly understood. In fairness, it should be said that the more recent cases reflect, to my mind at any rate, a better understanding of the issues and principles involved, and in this regard particular mention should be made of the very learnedjudgment of FarlamJ (as he then was) in the Mainline Carriers case. Nevertheless, taken as a whole, the body of case law on the topic represents a confusing and almost impenetrable mass for most students, and no doubt for many practitioners,law teachers and even judges.
- ItemOpen AccessBeneath the burning issue of Beadica: public policy and context astride the corporate veil(2021) van Wijk, Andrew Murray; Hutchison, DaleThe metaphors used when speaking of equity are rather colourful. One reads, amused, of the ‘burning issue', the ‘shibboleth' and the ‘sacred cow'. But these metaphors, used as they are in a discipline which tends away from the dramatic in its everyday formulations, only lend more emphasis to the gravity of the quandary. A widening gap between views on the proper method for the judicial control of contract, be it a balanced public policy or unfettered equity, caused true discordance between the Supreme Court of Appeal and the Constitutional Court, our two highest courts. In Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC) the Constitutional Court largely settled matters when it came down on the side of public policy. This no doubt caused surprise in some quarters, given its dicta in earlier cases. Nevertheless it settled the question of which legal device was to be used. Public policy is to have sole mandate and the ‘burning issue' was, apparently, doused. As to the nature of this legal device, it is a truism that the content of public policy changes with the times, but in the constitutional republic that South Africa is today the Constitution is an unassailable source of its content and values. This makes our interpretation of what it demands in the contractual context of huge import. The tension meant that instead of the cut and thrust of hard precedent, cases were largely evaluated for their tendency to reflect the increasing public facet to this most cloistered sanctum of private law. Brought back to the challenge in Beadica, this study traces in Chapters II and II something that went largely unnoticed in the shadow of the contract tectonics then on the move: the historical antecedents and theoretical underpinnings of the public interest aspect of public policy had culminated in a tension with separate legal personality. In Beadica the parties were juristic persons yet claimed the benefit of historical, substantive equality in their contractual affairs. This claim was weighed but found wanting in the Constitutional Court - but it is this ember, the implications of the corporate veil being lifted in the evaluation of equality, that represents, if not something new, then the confirmation of what some have long argued for - or suspected. Chapter IV accordingly argues that Beadica is a confirmation of the imperative of substantive equality in the contractual context, albeit that the bar has been set very high in light of the dangers. Chapter V briefly explores the adjacent legal routes by which similar outcomes could be reached before reflecting on the general historical treatment that is the bedrock of this piece.
- ItemOpen AccessLegal Malpractice and the Disappointed Beneficiary under English and German Law(2000) Demuth, Michael; Hutchison, DaleThe matter of this survey is the so-called disappointed-beneficiary cases. In these cases an intended beneficiary of a will suffers a loss, because the will is rendered invalid due to legal malpractice of the will-preparing lawyer. There are several difficult problems contained in these cases. The problems shall be examined by comparing the solutions for these cases under English and under German law. - As will be seen below, policy-considerations form the core of the leading court decisions dealing with that problem in England as well as in Germany because no satisfactory theoretical solution to the problem is been found yet. But in both jurisdictions it seems that the courts and writers concerned with these cases seem to tend to the opinion that the policy reasons are speaking for a solution in which the lawyer is held liable to the disappointed beneficiary. Since the theoretical problems are still not solved, these policy arguments are of crucial importance in the disappointed-beneficiary cases. Next to a survey of the conceptual issues it shall therefore be tried to examine these policy arguments carefully.
- ItemOpen AccessThe liability in delict of judges for wrongs committed in the course of judicial proceedings : an historical analysis of the relative immunity of the South African judiciary(1998) Van Hülsen, Johann-Dietrich; Hutchison, DaleThe focus of this thesis is on an aspect of judicial accountability that has not hitherto attracted much attention in South African law: the civil liability of the judiciary for wrongs committed in the course of judicial proceedings. More particularly, the thesis examines to what extent a South African judicial officer may be held liable in delict for infringing the proprietary or personality rights of another - almost invariably a litigant appearing before the judicial officer. The wrongful conduct in question is usually the giving of a judgement without a proper legal foundation (wrong judgement), but it may take a variety of other forms, for example defamation, insult or, less commonly, physical assault. Since judicial liability is not an invention of the modem constitutional state, but has deep and ancient roots, the investigation is inevitably and essentially an historical one. The thesis traces the development of such liability in Roman law, in early medieval law, in the ius commune (i.e., the Italian school of the Glossators and the Commentators), in Roman-Dutch law, in English law, and finally, in the South African usus hodiernus. The assessment of the modem South African law is a critical one. The question is asked whether the narrow scope of judicial liability that is presently recognised is an adequate safeguard against abuse of the judicial office, and whether it is compatible with the new constitutional order in South Africa. The topicality and controversial nature of the subject is evident from the submissions made by the judiciary to the Truth and Reconciliation Commission in October 1997. It is apparent that the judges are suspicious of attempts to make them more accountable for their actions, regarding these as encroachments on their traditional independence. Significantly, it also appears that the threat of civil liability is not one that is taken seriously. The approach adopted in this thesis is that a proper balance needs to be struck between judicial independence and judicial accountability; and that, as history teaches us, civil liability is an essential component of such accountability.
- ItemOpen AccessNegligently caused pure economic loss from a comparative perspective(1998) Von Bodenhausen, Eckard Freiherr; Hutchison, DaleThe problem of pure economic loss, which refers to financial loss that is not the result of physical damage to the person or property of the plaintiff, 1 has a long history and is still controversial in many systems. In a nwnber of legal systems, compensation for pure economic loss is not allowed,2 however, the jurisprudence and courts of these systems have tried to develop mechanisms to cover such loss in certain instances.3 This dissertation looks at the problem of negligently caused pure economic loss from a comparative perspective. A comparison is made between the legal system of English and Germany. The German and English law differ in so far as English law is a common law and the German is a code law. Both countries have developed different approaches to solve the problem of pure economic loss; in England, the law of tort was expanded and in Germany, the law of contract was expanded. This paper demonstrates, however, that both systems arrive at the same general result. This dissertation focuses only on the ncm-cqntractual liability for negligently caused pure economic loss. Liability for fatal accidents will not be included. The first chapter presents the English approach in the field of negligently caused pure economic loss in accordance with landmark decisions. The second chapter deals with the German approach. The emphasis of this chapter lies on the expansion of the law of contract.
- ItemOpen AccessThe Pactum De Non Cedendo: through a constitutional lens(2017) Abrahams, Ebrahim; Hutchison, DaleThe aim of this paper was to determine whether the current South African law governing the doctrine of pacta de non cedendo complies with the constitutional mandates imposed by our Constitution. In terms of the current law a pactum de non cedendo will only be accorded validity if the debtor is able to demonstrate a substantial interest in the prohibition against cession. However, the interest requirement is only applicable when a pactum de non cedendo is superimposed onto a pre-existing right, and is not required when a right is born ab initio with a prohibition on transfer. In my opinion the current law falls short of the "spirit, purport and objects of the Bill of Rights", as required by s 39(2) of the Constitution, and is therefore, in need of development. In this paper I propose the following development: Firstly, by requiring the debtor to prove an interest that is served by the pactum de non cedendo, in certain circumstances, the law undermines the value of equality held so dearly by our society. This is because no such requirement exists when other types of restrictive clauses are concluded. It is my contention that the "interest requirement" be relegated from being a free-standing requirement to simply being another factor to be taken into account when conducting the public policy enquiry. Secondly, pacta de non cedendo appearing in book debts and other similar monetary obligations should always be held contrary to public policy due to the importance of the free flow of claims in commerce, specifically, the factoring and securitisation industries. Factoring plays a crucial role in the world economy, the most advantageous aspect of factoring is that small to medium size businesses may obtain much needed finance by selling their claims to a factoring house. Lastly, the current distinction drawn between a pactum de non cedendo that is superimposed onto a pre-existing right, and a right that is created with a pactum de non cedendo is artificial and illogical, the correct distinction that should be drawn is between a pactum de non cedendo that is concluded by the debtor and creditor on the one hand, and between a pactum de non cedendo concluded between the cedent and cessionary on the other.
- ItemOpen AccessPre-contractual justice in a comparative perspective: Striking the right balance(1999) Frauenknecht, Sigrid Anne; Hutchison, DaleOne of the most important reasons for doing comparative work in the field of law is to get a better understanding of the legal jurisdictions of other countries. Studying the law of another country also enables one to understand one's own legal jurisdiction better. It helps one to see well-established principles in a new light and to ask questions about the continued applicability of such principles.
- ItemOpen AccessSimulated Transactions and the fraus legis doctrine(Juta, 2014-03-01) Hutchison, Andrew; Hutchison, DaleThis paper deals with the doctrine of substance over form in so far as it relates to committing fraud on the law (or the doctrine of fraus legis), and the connected question of when a transaction can be said to be simulated. These three doctrinal concepts are inter-linked and their interstices will be explored with reference to the case law. The aim is to shed light particularly on the last issue – simulated transactions – and to answer the question whether dishonesty remains a requirement for a finding that a transaction is simulated. This enquiry is prompted by dicta in the recent case of NWK which tend to suggest that in certain circumstances a transaction might be deemed to be simulated even in the absence of fraud.
- ItemOpen AccessThe assessment of damages for delict in South African and German Law, with special regard to loss of use and fraudulent misrepresentation inducing a contract(1998) de Grahl, Julian; Hutchison, DaleThis thesis deals with the question of how the existence and extent of damage, as well as well the proper amount of damages, · are to be determined in the case of delict. To answer this question most legal systems have developed different rules and principles which do work satisfactorily in most cases. There are, however, certain cases in which the basic principles do not lead to satisfying results. In these cases courts often have a problem establishing their, decision, as neither basic legal principles nor legal theory are able to provide a satisfying solution.
- ItemOpen AccessThe German "culpa in contrahendo"(1998) Ick, Harald; Hutchison, DaleIn German law the contractual liability of the debtor requires an obligation, this is expressed within the German civil code which formulates 'an obligatory relationship'. For this reason, any fault (Verschulden) committed before or during the conclusion of a contract, can only be an unlawful act, in the circumstances of the law of delict. However certain problems in the law of delict arise, such as the enumeration principle, exculpatory proof, burden of proof and prescription times. These problems caused unsatisfactory results in special constellations since the German Civil Code (BGB) was enacted in 1900. Therefore, the courts and the legal writers i.n addition to the written code, and without consent or refusal by the legislator, developed the concept of 'culpa in contrahendo' as 'fault during the negotiations of a contract' (Verschulden bei Vertragsverhandlungen).