Constitutionalism, Good Faith and the Doctrine of Specific Performance: Rights, Duties and Equitable Discretion

Siliquini-Cinelli, Luca; Hutchison, Andrew

Constitutionalism, Good Faith and the Doctrine of Specific Performance: Rights, Duties and Equitable Discretion

Journal Article

2016-03-01

Journal Title

South African Law Journal

Link to Journal

https://juta.co.za/products/3601-south-african-law-journal/

Publisher

Juta

Publisher

University of Cape Town

Department

Department of Commercial Law

Faculty

Faculty of Law

Abstract

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.