Includes bibliographical references. / This dissertation's primary hypothesis is that the angst-spawning confusion plaguing this area of law stems from a feckless amalgamation of parallel, if not competing, notions of loss. Let me explain. When a promisee seeks judicial relief for breach, the court habitually applies two deeply-ingrained presumptions of fact whose status has been unconsciously elevated to rules of law.10 These judicial presumptions are that: 1. The
promisee's concern is loss of performance and not loss of promise; and (After confining the matter to loss of performance) 2. The
promisee's performance interest is essentially pecuniary value (profit) and not non-pecuniary value (utility). The Addis case illustrates the sad result of focusing on performance in a situation where the predominant loss caused by breach is promissory in character (Presumption 1). Farley, on the other hand, promotes the commercial agenda by perpetuating the notion that financial loss is the premier interest of contract as law (Presumption 2). This dissertation tests the above hypothesis by evaluating the prohibition on mental distress damages.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uct/oai:localhost:11427/12609 |
| Date | January 2012 |
| Creators | Emurwon, Brian Kwame |
| Contributors | Hutchinson, Dale |
| Publisher | University of Cape Town, Faculty of Law, Department of Private Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Master Thesis, Masters, LLM |
| Format | application/pdf |
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