Browsing by Subject "Good Faith"

Now showing 1 - 4 of 4
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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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    Constitutionalism, Good Faith and the Doctrine of Specific Performance: Rights, Duties and Equitable Discretion
    (Juta, 2016-03-01) Siliquini-Cinelli, Luca; Hutchison, Andrew
    This paper will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question of whether specific performance is available as of right (as in the Civil law), or only subject to judicial discretion (as in the Common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the Common law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The paper will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness, is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.
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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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    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.