Abbas Arts, , p. If the parties to a treaty had contemplated for the occurrence of the changed circumstances, the doctrine does not apply and the provision remains in effect. The burden of proof is, however, on the party wishing to escape liability to prove that the restraint of trade agreement is against public policy. Our common law does not recognise agreements that are contrary to public policy and will declare contracts invalid on that ground 82 Public policy is rooted in the Constitution and the values that underlie it. The doctrine is essentially an “escape clause” to the general rule of pacta sunt servanda promises must be kept.

This page was last edited on 6 November , at The research in this dissertation investigates the impact of pacta sunt servanda in the South African law of contract. Everfresh Market Virginia Pty Ltd v Shoprite Checkers Pty Ltd 23 involved an application for leave to appeal which required the Court to consider the circumstances in which it should intervene to infuse the law of contract with constitutional values. Freedom of contract means that parties are free to decide whether or not to contract; with whom and on what terms. The interpretation of section 27 1 by the Constitutional Court is laudable as it is consistent with the objective of the Constitution that contracting parties should be treated with equal worth and concern. Similarly in Afrox Healthcare Bpk v Strydom, pacta sunt servanda trumped fairness.

These statements are a source of hope regarding the notion of fairness and equity in contract law. The first part analyses the question whether the common law of contract has fully embraced constitutional values to import fairness into contractual relations. The issue to be determined by the Court was whether the defendant was liable for the bodily injuries sustained by the plaintiff.

dissertation pacta sunt servanda

The October quiz in November. Unequal bargaining power is a relevant consideration in determining whether a contractual term is contrary to public policy.

The application for leave to appeal thus failed. See also Barnard supra n at The relocation of a business of this kind not pacta involves substantial costs, it requires servabda term planning and pacta well have a dire impact alliteration homework its reputation in the market place.


Browsing Dissertations – FacLaw by Subject “Pacta sunt servanda (International law)”

The answer must be in the negative. The argument that provisions dealing with unfair contractual terms needs to be amended, is pertinent to the realisation of consumer rights in South Africa. The need to balance certainty, fairness and equity cannot be overstressed. Dissertatin it is clear that a fundamental change of circumstances might justify terminating or modifying a treaty, the seervanda denunciation of a treaty is prohibited.

The Constitution recognises the imbalances of the past and the CPA is in accordance with the objective of the Constitution to address the social and economic inequalities brought about by apartheid and the discriminatory laws. No part of this work may be reproduced or transmitted in any servaanda or by any means, without the prior written permission of the University of Pretoria.

Section 51 lists the forms of transactions, agreements, terms or conditions that are prohibited. Registered in England and Wales. The Dissfrtation creates mechanisms through which problems experienced in contract law could be ameliorated by introducing prerequisites for consumer contracts, such as plain language and the need for the disseertation of the consumer to be drawn to certain clauses. Pacta sunt servanda influences the interpretation and drafting of contracts and must therefore always be considered when executing contractual agreements.

Browsing Dissertations – FacLaw by Subject “Pacta sunt servanda (International law)”

This site is operated by a business pacta businesses owned by Informa PLC and all copyright resides with them. The common law of contract and the Consumer Protection Act 68 of These are, first, terms aimed at defeating the purposes and policy of the CPA.

dissertation pacta sunt servanda

One goose, two pacta. It is hoped that case law will provide direction in the near future. I am unable to agree.


The decision in Brisley v Drotsky also shows that sanctity of contract prevails over the notion of good faith and fairness. The CPA explains the meaning of a term that is unfair, unreasonable or unjust as a term that is: Autonomy entails that the decision-maker must accept the responsibility of binding himself to a contract. It also discusses the interaction between sanctity of contract and fairness, as well as equity in terms of the common law of contract.

The very principles of socio-economic expediency, which in many circumstances support a policy favouring the exact enforcement of contracts freely entered into by consenting parties, may in particular circumstances require that less weight be attached to the ideals of individual autonomy and freedom of action.

The notion of good faith has an active role to play in ensuring that the law remains sensitive to and in tune with the needs of society.

The impact of pacta sunt servanda in the law of contract

Disertation rebus sic stantibus relates to changed circumstances only if they had never been contemplated by the parties. Courts, accordingly, should continue to gradually develop common law by infusing contract law doctrines with constitutional values. To what extent has the common law of contract embraced constitutional values?

The CPA, however, will not adequately address the problem of unfairness in contract law. The dissertation servanda this document is only available to i-law. The Constitutional Court in Everfresh Market Virginia v Shoprite Checkers 73 emphasised the central importance of the principle of good faith and the desirability of infusing the law of contract with constitutional values, including the values of ubuntu.

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