Browsing by Subject "Contract"

Now showing 1 - 10 of 10
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    Agreements to agree: can there ever be an enforceable duty to negotiate in good faith?
    (Juta, 2011-06-01) Hutchison, Andrew
    Parties to an agreement may include open terms which leave certain particulars open to future negotiation. The aim of this type of provision is usually to allow for changing circumstances over time or the threshing out of more detailed terms. Conventional drafting practice is to state that these terms are to be negotiated in the future in good faith. What if a party subsequently resists all efforts to reach agreement? Is there a mechanism which will enforce this duty to negotiate? Of course the parties may have inserted their own deadlock-breaking provision – in the absence thereof a court should be able to find its own resolution. This paper will consider proposed methods of enforcement of such a duty with reference to developments in South Africa as well as other countries, particularly the USA and Australia.
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    Change of circumstances in contract law: The clausula rebus sic stantibus
    (LexisNexis, 2009-03-01) Hutchison, Andrew
    A common problem in contract law occurs when a supervening change of circumstances impacts upon contractual relations. Although performance does not become impossible, it may become more difficult. Indeed, the whole basis on which consent was originally based may fall away. In medieval times the impact of changed circumstances on a contract was mitigated by an implied condition, which reserved the right of a contracting party to withdraw from that contract if he or she would never have promised with hindsight of the altered circumstances. This doctrine came to be known as the clausula rebus sic stantibus. This article will trace the life of the clausula doctrine, from its origins in Roman moral philosophy, through canon law and the writings of theologians, to its arrival as a fully fledged doctrine in civil law. While change of circumstances remains a problem in contract today and is recognised as a ground for voiding – or even intervening in – contracts in some jurisdictions, it is not recognised in others, such as South Africa. This is due largely to a concern for certainty in contract, which caused the demise of the clausula doctrine in later years. This article will end with the fall from favour of this concept in the age of codification.
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    The doctrine of frustration: A solution to the problem of changed circumstances in South African contract law?
    (Juta, 2010-03-01) Hutchison, Andrew
    The South African law of contract contains a lacuna in that it addresses only the narrow issue of supervening impossibility and not the broader problem of supervening change of circumstances. Comparative study is illuminating in this regard: many other leading Western legal systems employ a doctrine of changed circumstances. One such example is English law. While this system is more conservative than, for example, the equivalent US law or the model rules of international trade as contained in the Unidroit Principles of International Commercial Contracts, it offers a broad approach of discharge where there has been a “radical change in the obligation”. This feature of English law has been used in several past South African decisions to offer a solution to the lack of a doctrine to deal with changed circumstances in this country. The question needs to be asked what the status of these precedents is and in particular whether the English law of frustration is compatible with the South African common law. The answer is that there are fundamental differences between these two systems and that while English law provides a useful comparative study, in itself it is not the ideal solution to South Africa’s problem.
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    Gap filling to address changed circumstances in contract law – when it comes to losses and gains sharing is the fair solution
    (Juta, 2010-12-01) Hutchison, Andrew
    South African law does not make provision for the impact of fundamentally changed circumstances on a contract if the change does not result in objective impossibility. This is out of synch with most other leading legal systems around the world, as well as with the foremost bodies of supranational contract law rules, such as the Unidroit Principles. When a situation of hardship arises, this creates a gap in a contract, which the parties didn’t foresee and which the law should fill. Ideally resultant losses and gains should be equitably split between the parties. The development of notions of fairness in contracting has reached a point where public policy could require that a situation of changed circumstances be addressed, to achieve a fair result inter partes. This normative principle should underlie the adoption of new rules to deal with hardship in South Africa, which could be based on best international practice as gleaned from comparative study.
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    Good faith in contract: a uniquely South African perspective
    (2019-04-01) Hutchison, Andrew
    While the doctrine of good faith has always played a role in South African contract law, it is currently being reshaped by the courts under a banner of “transformative constitutionalism”. Of particular interest in this development is the role of an indigenous value of fair dealing, captured by the vernacular term “ubuntu”. The article will (1) compare the Canadian findings in Bhasin with the current South African status quo, and (2) comment on the evolving legal culture of contract in South Africa. In this regard, the role and meaning of ubuntu will be contextually evaluated using social science materials. In combination, this will provide a uniquely South African perspective on an area of contract law which is evolving in the Commonwealth.
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    A living customary law of commercial contracting in South Africa: some law related hypotheses
    (2017-10-01) Hutchison, Andrew; Sibanda, Nkanyiso
    Inspired by calls to ‘decolonise’ South African law and legal education, this paper will posit some hypotheses as to the nature of a living customary law of commercial contracting from the perspectives of two South African contract law teachers. An account of the commercial format of customary contracting is largely absent from the law reports and leading legal textbooks in this country. The dominant narrative in existing legal sources, however, (which may be stereotyped), is of African communalism prevailing in customary contract practice. This is reflected (for example) in the discourse on ‘ubuntu’, which is being used at present as a vehicle for the constitutional transformation of the South African common law of contract. Other existing empirical accounts from discourses such as economics and anthropology also suggest, however, that contracting in indigenous African communities rests on notions of trust and community. This is reinforced by the existence of informal township dispute resolution structures. We will thus posit a central hypothesis that customary commercial contracting is relational in nature, using an inter-disciplinary literature review and drawing on the lived experiences of the authors. Other related hypotheses will also be developed. Ultimate truth here is a matter for future empirical study.
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    Misrepresentation in consumer insurance: the United Kingdom legislature opts for a ‘reasonable consumer’ standard’
    (Juta, 2013-12-01) Hutchison, Andrew; Stoop, Helena
    In 2012 the UK Legislature passed a new consumer insurance Act, which deals with certain areas of insurance law which have traditionally proved troubling for consumers. This note aims to draw South African attention to the provisions of this statute, and discusses in particular: (i) the treatment of misrepresentations made by consumers in disclosure forms; as well as (ii) its provisions on the issue of constructive knowledge of insurance companies of information disclosed by consumers to insurance intermediaries. There is a detailed case history on both these issues in both the UK and in South Africa, which is used to contextualise the debate. In particular, the materiality standard of the risk awareness of a ‘reasonable consumer’ has been chosen by the UK Act, which is more permissive than South Africa’s ‘reasonable person’ standard.
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    Reciprocity in contract law
    (Juta, 2013-03-01) Hutchison, Andrew
    Most modern contracts are bilateral in nature, implying a mutual exchange of promises in content. This raises the question of when such promises create obligations which can be said to be reciprocal. Furthermore, what remedy will a party have if a reciprocal performance is not forthcoming? This article aims to explore the concept of reciprocity in contracts historically and comparatively to demonstrate its impact on contract law worldwide. This will involve an excursus of the major contract law rules which this principle underlies. The contribution will explore in brief the major problem areas in South Africa (and worldwide) where reciprocity plays a determinative role. The main argument is that reciprocity, in the sense of fairness in exchange, is central to many South African contracts, without it contractual validity may be threatened and enforceability is lost.
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    Remoteness in contract: Under revision in the House of Lords too?
    (Juta, 2012-06-01) Hutchison, Andrew
    This note discusses a 2008 House of Lords decision on the proper test for remoteness of contractual damages following a breach of contract. In The Achilleas, Lord Hoffmann set out a test for remoteness which varied slightly from the traditional Hadley v Baxendale test of foreseeability entrenched in Common Law countries world-wide. Lord Hoffmann’s test draws on the broader context of an agreement, including whether there was a tacit assumption of risk by one of the parties, as well as standard norms in the industry in question. Although the Court was not unanimous in The Achilleas, this represents a significant departure from settled law. In South Africa, our Supreme Court of Appeal has favoured a ‘contemplation’ (foreseeability) test over a ‘convention’ (assumption of risk) one. In an important decision in 2001, however, this Court gave an obiter indication that it may also in future revise our foreseeability test in favour of a more flexible one, in line with other branches of the law of obligations. Lord Hoffmann’s decision is thus of relevance in demonstrating comparative trends in development of the law of remoteness of damage.
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    Simulated Transactions and the fraus legis doctrine
    (Juta, 2014-03-01) Hutchison, Andrew; Hutchison, Dale
    This 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.