This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced. Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted. Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained. This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities. The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland. / Jurisprudence / LL.D.

Made available in DSpace on 2016-04-26T20:27:24Z (GMT). No. of bitstreams: 1 Vania Wongtschowski.pdf: 1219651 bytes, checksum: fffdb173e199394f0de7ebad5e5ff21c (MD5) Previous issue date: 2008-05-26 / This is a master s dissertation with the objective of analyzing the conversion of legal transactions, as regulated by section 170 of the Civil Code, as follows: section 170. If however a null legal transaction contains the requirements of another, the latter shall survive if the purpose intended by the parties allows the assumption that they would have wanted it had they foreseen nullity . This section was inspired by paragraph 140 of the German Civil Code, section 393 of the Portuguese Civil Code and section 1424 of the Italian Civil Code, and is based upon the principle of maintenance of legal values, thus seeking to safeguard the relevance of transactional declarations and ensure that legal transactions may achieve their social function. Throughout the work, the author defends the idea that the purpose of the conversion of legal transactions should be perceived through a social and objective perspective, therefore removing the need to seek the internal will of the agents of the legal relationship in order to seek the practical effects that would arise out of the legal transaction were it not invalid or ineffective in an objective manner and on the basis of the transactional declaration. As such, based upon the analysis of the effects that would be achieved by such transaction, it is possible to conceive its conversion, causing the invalid or ineffective legal transaction to be perceived under a new label by means of an act of legal characterization so that effect can be given to such legal transaction. The conversion of legal transactions is consistent with the evolvement of civil law and the so-called socialization and functions of private law to the extent that it seeks to cause legal transactions achieve their social function, thus not frustrating the trust or the fair expectation of the other party or society / Trata-se de dissertação de mestrado que visa à análise do instituto da conversão do negócio jurídico, disciplinado no artigo 170 do Código Civil, com o seguinte teor: art. 170. Se, porém, o negócio jurídico nulo contiver os requisitos de outro, subsistirá este quando o fim a que visavam as partes permitir supor que o teriam querido, se tivessem previsto a nulidade . Este artigo foi inspirado no parágrafo 140 do Código Civil alemão, nos artigos 393 do Código Civil português e 1424 do Código Civil italiano, e tem como fundamento o princípio da conservação dos valores jurídicos, procurando salvaguardar a relevância da declaração negocial e garantir que o negócio jurídico possa atingir a sua função social. Sustentamos, ao longo do trabalho, que o instituto da conversão do negócio jurídico deve ser encarado sob uma perspectiva social e objetiva, eliminando-se a necessidade de se buscar a vontade interna dos sujeitos da relação jurídica, para se buscar, em uma base objetiva e tomando por base a declaração negocial, os efeitos práticos que adviriam do negócio jurídico, não fosse a sua invalidade ou ineficácia. Com base, assim, na análise dos efeitos que seriam alcançados por tal negócio, é possível se falar em sua conversão, o que fará com que o negócio inválido ou ineficaz seja encarado com uma outra roupagem, por meio de um ato de qualificação jurídica, a fim de que sejam atribuídos efeitos a tal negócio jurídico. O instituto da conversão do negócio jurídico está em consonância com a evolução do direito civil e com a chamada socialização e funcionalização do direito privado, na medida em que busca fazer com que o negócio possa atingir sua função social, não frustrando a confiança ou a justa expectativa da outra parte ou mesmo da sociedade

This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced. Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted. Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained. This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities. The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland. / Jurisprudence / LL.D.