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Constitutionalising contract law: ideology, judicial method and contractual autonomy

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.
Date12 July 2013
CreatorsBhana, Deeksha
Source SetsSouth African National ETD Portal
Detected LanguageEnglish
Formatapplication/pdf, application/pdf

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