The Pactum De Non Cedendo: through a constitutional lens

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dc.contributor.advisorHutchison, Daleen_ZA
dc.contributor.authorAbrahams, Ebrahimen_ZA
dc.date.accessioned2017-08-28T13:12:50Z
dc.date.available2017-08-28T13:12:50Z
dc.date.issued2017en_ZA
dc.description.abstractThe 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.en_ZA
dc.identifier.apacitationAbrahams, E. (2017). <i>The Pactum De Non Cedendo: through a constitutional lens</i>. (Thesis). University of Cape Town ,Faculty of Law ,Department of Private Law. Retrieved from http://hdl.handle.net/11427/24992en_ZA
dc.identifier.chicagocitationAbrahams, Ebrahim. <i>"The Pactum De Non Cedendo: through a constitutional lens."</i> Thesis., University of Cape Town ,Faculty of Law ,Department of Private Law, 2017. http://hdl.handle.net/11427/24992en_ZA
dc.identifier.citationAbrahams, E. 2017. The Pactum De Non Cedendo: through a constitutional lens. University of Cape Town.en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Abrahams, Ebrahim AB - The 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. DA - 2017 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2017 T1 - The Pactum De Non Cedendo: through a constitutional lens TI - The Pactum De Non Cedendo: through a constitutional lens UR - http://hdl.handle.net/11427/24992 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/24992
dc.identifier.vancouvercitationAbrahams E. The Pactum De Non Cedendo: through a constitutional lens. [Thesis]. University of Cape Town ,Faculty of Law ,Department of Private Law, 2017 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/24992en_ZA
dc.language.isoengen_ZA
dc.publisher.departmentDepartment of Private Lawen_ZA
dc.publisher.facultyFaculty of Lawen_ZA
dc.publisher.institutionUniversity of Cape Town
dc.subject.otherPrivate Law and Human Rightsen_ZA
dc.titleThe Pactum De Non Cedendo: through a constitutional lensen_ZA
dc.typeMaster Thesis
dc.type.qualificationlevelMasters
dc.type.qualificationnameLLMen_ZA
uct.type.filetypeText
uct.type.filetypeImage
uct.type.publicationResearchen_ZA
uct.type.resourceThesisen_ZA
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