A critical analysis of the role of the boni mores in the South African law of contract and its implications in the constitutional dispensation.
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Date
2014
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Abstract
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.
Description
Master of Laws in Business Law.
Keywords
Contracts -- South Africa., Liberty of contract -- South Africa., Constitutional entrenchment -- South Africa., Theses -- Business law., Boni mores.