A critical analysis of the role of the boni mores in the South African law of contract and its implications in the constitutional dispensation.
This dissertation considers the current position of the boni mores in the South African law of contract, and will examine the correctness and constitutionality of this position. Since the advent of the Constitution, there has been a constant movement towards a system of law which promotes the fundamental values upon which our Constitution is based, namely the values of freedom, equality and dignity. However the law of contract has remained somewhat resistant to this call for transformation, with the Supreme Court of Appeal clinging to legal certainty and the ideals of the classical liberal model to prevent the greater incorporation of certain normative values which would ensure the achievement of the transformation which the Constitution envisages. Although the principles of freedom and sanctity of contract, ensure legal certainty, predictability, and efficiency, these principles alone, fail to achieve the results which our Constitution calls for. One could even argue that these principles have the potential to achieve results which are potentially at odds with the demands of the Constitution. The boni mores, it is argued, is a value which can ensure the transformation of the law of contract in light of the Constitution, to a model of contract law which is focused on an objective standard that will achieve substantive fairness and contractual justice. This will ensure the focus will no longer be merely on the intention of the parties and the principles of freedom and sanctity of contract, and will enable a shift towards a model which will balance these principles with contractual justice and substantive fairness. This approach has been taken in the law of delict, which can be seen as fully embracing the transformative and developmental goals of the Constitution. This dissertation will consider the judgments of the Supreme Court of Appeal in which it was stated that normative values, such as the boni mores, cannot be used in the law of contract as an independent ground for interfering in contractual relationships. The main judgment being the case of Brisley v Drotsky; this case will be considered in detail, and a critical analysis of the judgment and the reasons put forward by the Supreme Court of Appeal will be undertaken. The constitutionality of the current position of the boni mores will then be examined.