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1	The basis of contractual liability in indigenous law Anspach, Philip 30 June 2003 (has links) This study examines the basis of contractual liability in indigenous law. It concludes that contractual liability arises only from real contracts where one party has performed fully or partially in terms of an agreement. Attention is given to both the nature and concept of indigenous contracts to ascertain the function of contracts in indigenous societies in order to bring a holistic perspective to the topic. It is demonstrated that the settlement of disputes arising out of indigenous contracts is primarily focused on the reconciliation of people and the consequent maintenance of harmony within the community. The foremost concern in indigenous law of contract is with human justice rather than with strict legal justice, and expression is thereby given to prevailing community values. / Indigenous Law / LL.M. Relations between people Community harmony Human justice Elements of contracts Contractual liability Performance or part performance Disputes from contracts Reconciliation of people Social setting Concept of contract Real nature Indigenous law 346.2068 Contracts -- South Africa Liability (Law) -- South Africa. Customary law -- South Africa
2	The basis of contractual liability in indigenous law Anspach, Philip 30 June 2003 (has links) This study examines the basis of contractual liability in indigenous law. It concludes that contractual liability arises only from real contracts where one party has performed fully or partially in terms of an agreement. Attention is given to both the nature and concept of indigenous contracts to ascertain the function of contracts in indigenous societies in order to bring a holistic perspective to the topic. It is demonstrated that the settlement of disputes arising out of indigenous contracts is primarily focused on the reconciliation of people and the consequent maintenance of harmony within the community. The foremost concern in indigenous law of contract is with human justice rather than with strict legal justice, and expression is thereby given to prevailing community values. / Indigenous Law / LL.M. Relations between people Community harmony Human justice Elements of contracts Contractual liability Performance or part performance Disputes from contracts Reconciliation of people Social setting Concept of contract Real nature Indigenous law 346.2068 Contracts -- South Africa Liability (Law) -- South Africa. Customary law -- South Africa
3	The harmonisation of good faith and ubuntu in the South African common law of contract Du Plessis, Hanri Magdalena 11 1900 (has links) The legal historical development of fairness in the South African common law of contract is investigated in the context of the political, social and economic developments of the last four centuries. It emerges that the common law of contract is still dominated by the ideologies of individualism and economic liberalism which were imported from English law during the nineteenth century. Together with the theories of legal positivism and formalism which are closely related to parliamentary sovereignty and the classical rule of law, these ideals were transposed into the common law of contract through the classical model of contract law which emphasises freedom and sanctity of contract and promotes legal certainty. This approach resulted in the negation of the court’s equitable discretion and the limitation of good faith which sustain the social and economic inequalities that were created under colonialism and exacerbated under apartheid rule. In stark contrast, the modern human rights culture grounded in human dignity and aimed at the promotion of substantive equality led to the introduction of modern contract theory in other parts of the world. The introduction of the Constitution as grounded in human dignity and aimed at the achievement of substantive equality has resulted in a sophisticated jurisprudence on human dignity that reflects a harmonisation between its Western conception as based on Kantian dignity and ubuntu which provides an African understanding thereof. In this respect, ubuntu plays an important role in infusing the common law of contract with African values and in promoting substantive equality between contracting parties in line with modern contract theory. It is submitted that this approach to human dignity should result in the development of good faith into a substantive rule of the common law of contract which can be used to set aside an unfair contract term or the unfair enforcement thereof. / Private Law / LL. D. Bona fides Classical law of contract Equality Contractual autonomy Equity Fairness Freedom Good faith Human dignity Human dignity as empowerment Human dignity as constraint Kantian ethics Modern theory of contract law Open norms Public policy Rule of law Sanctity of contracts Social justice and transformation Substantive equality Transformative constitutionalism Ubuntu 346.2068 Contracts -- South Africa -- Cases Ubuntu (Philosophy) Transitional justice -- South Africa Humanity -- South Africa

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