In fulfilment of the requirements for the degree of Doctor of Philisophy in the School of Law at the University of the Witwatersrand. / This thesis develops a conceptual framework which represents a systematic, integrated approach to the constitutionalisation of the common law of contract. Although it is beyond doubt that the Bill of Rights must apply horizontally to contract law, there is still considerable debate about the manner in which the system of contract law should be constitutionalised. The thesis begins with an analysis of the respective roles of ss 8 and 39 of the Constitution and finds that they call for the constitutional development to take place within the common law framework, though with constitutional adjustments as required. Whilst the entire body of contract law must be constitutionalised incrementally over time (within the common law tradition), constitutional justice must be done simultaneously in every contract case too. The thesis interrogates the substance, form and attending legal mechanics of operation of contractual autonomy; the idea being that a constitutionalisation of contractual autonomy would in effect constitutionalise or, at the very least, set the stage for the constitutionalisation of contract law in its entirety. The thesis proceeds to unpack the classical liberal underpinnings of contractual autonomy and to tease out its internal (content) and external (reach) dimensions. It highlights contractual autonomy’s preference for an atomistic, independent conception of the contracting self as bolstered by strongly individualist values, and explains that this is out of step with the constitutional vision of a more contextual, interdependent, conception of the self as grounded in collectivist values. Rather, a fluid triage comprising the foundational constitutional values of freedom, dignity and equality, which is cognisant also of the rights enumerated in the Bill of Rights, must now form the basis of contractual autonomy. Moving to the legal methodology employed in the common law of contract, the thesis shows how the extant contract law machine ensconces the classical liberal conception of freedom of contract and thereby mostly frustrates bona fide efforts to constitutionalise the contract law. It thus argues that the legal methodology must be adjusted so that it dovetails likewise with the foundational constitutional triage’s basis of contractual autonomy. Finally, the thesis considers the practical implications of its argument by applying the triage in a number of concrete contexts. Focusing on the economic right to freedom of trade, occupation and profession, the civil-political right to freedom of religion, belief and opinion and the socio-economic right of access to health care services, it shows how a proper (substantive and methodological) invocation of the triage in relation to the internal and external dimensions of contractual autonomy can resolve much of the uncertainty surrounding the question of how precisely to approach the process of constitutionalising contract law.

In German law the contractual liability of the debtor requires an obligation, this is expressed within the German civil code which formulates 'an obligatory relationship'. For this reason, any fault (Verschulden) committed before or during the conclusion of a contract, can only be an unlawful act, in the circumstances of the law of delict. However certain problems in the law of delict arise, such as the enumeration principle, exculpatory proof, burden of proof and prescription times. These problems caused unsatisfactory results in special constellations since the German Civil Code (BGB) was enacted in 1900. Therefore, the courts and the legal writers i.n addition to the written code, and without consent or refusal by the legislator, developed the concept of 'culpa in contrahendo' as 'fault during the negotiations of a contract' (Verschulden bei Vertragsverhandlungen).

Includes bibliographical references / The thesis discusses the origin and development of anticipatory breach of contract in South African law leading up to the decision in Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (2) SA 284 (SCA) and the implications of this decision on the law. This decision is generally regarded as the culmination of the development of a 'new approach' to repudiation, as a form of anticipatory breach of contract, in South African law and this 'new approach' and other aspects of the decision will be discussed in detail. Drawing on Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd and the decisions of Lord Diplock in English law the thesis proposes a model for anticipatory breach of contract that defines anticipatory breach of contract as conduct or circumstances that support a conclusion, with reasonable certainty, that a contracting party will fail to perform their primary obligations under the contract correctly and that such failure justifies affording the aggrieved party a right to cancel the contract. Anticipatory breach of contract will therefore always amount to a material breach of contract, where material breach of contract consists of a failure by a contracting party to perform her or his primary obligations correctly, or conduct which indicates with reasonable certainty that she or he will fail to perform their primary obligations correctly, which will substantially deprive the aggrieved party of the benefit of the contract. If, balancing the interests of the parties, it would be fair to afford the aggrieved party a right to cancel the contract this conduct will amount to a material breach of contract. Anticipatory breaches of contract are those material breaches which consist of conduct indicating that a failure will occur rather than consisting of the actual failure to perform a primary obligation. In addition to defining when the remedy of cancellation is available to an aggrieved party the thesis also proposes certain other modifications to the remedies available to an aggrieved party facing an anticipatory breach of contract including introducing into the South African law, as a remedy for an anticipated breach of contract, a 'request for an adequate assurance of performance' modelled on the remedy of the same name originating in the Uniform Commercial Code.

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