Gap filling to address changed circumstances in contract law – when it comes to losses and gains sharing is the fair solution
Journal Article
2010-12-01
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Authors
Journal Title
Stellenbosch Law Review
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Volume Title
Publisher
Juta
Publisher
University of Cape Town
Department
Faculty
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Series
Abstract
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.
Description
Reference:
Hutchison, A. (2010). Gap filling to address changed circumstances in contract law-when it comes to losses and gains, sharing is the fair solution. Stellenbosch L. Rev., 21, 414.