Masters Degrees (Private Law)

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Browsing Masters Degrees (Private Law) by browse.metadata.advisor "Myburgh, Franziska"

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    Pre-contractual agreements
    (Stellenbosch : Stellenbosch University, 2020-03) Kleinhans, Brittany Lily Evelyn; Myburgh, Franziska; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: As modern commercial transactions become larger and more complex, business professionals have resorted to various instruments or agreements aimed at regulating and progressing the negotiation process. Some of these instruments can even strongly resemble a contract, but are preliminary in form, and as such give rise to uncertainty as to their enforceability. The diverse range of agreements concluded prior to a principal contract, which may be termed pre-contractual agreements, are the focus of critical examination in this thesis. The nature and legal consequences of pre-contractual agreements are both uncertain and controversial. This is in large part due to the fact that the term “precontractual” does not refer to a specific type of agreement with a standardised legal content but rather to the stage at which the agreement is concluded. In this thesis, the various types of pre-contractual agreements are catergorised according to their function so as to establish which of these agreements, if any, meet the validity requirements for a contract and thus give rise to legal consequences. Particular focus is placed on the legal nature and consequences of various types of agreements to negotiate. Due to the limited local case law and academic literature on pre-contractual agreements and the broader topic of pre-contractual liability, comparative observations can form a central component in the formulation of potential solutions to the obstacles presented by these agreements. With the benefit of comparative analysis the conclusion is reached that a sound framework to regulate the precontractual phase can be established through the development of the law of contract to enforce specific types of agreements to negotiate. To analyse all the potential legal consequences arising from pre-contractual agreements comprehensively, the scope of the analysis extends beyond the law of contract to consider the potential remedies that may lie in other sources of law, such as the law of delict and the law of unjustified enrichment. The conclusion is reached that both the law of delict and the law of unjustified enrichment can serve as valuable sources of pre-contractual liability to rectify potential injustices that may arise during the presently unregulated pre-contractual phase.
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    Remoteness and the limitation of contractual damages
    (Stellenbosch : Stellenbosch University, 2016-12-07) Diamond, Alma; Myburgh, Franziska; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT : This study explores remoteness of contractual damages in South African law. The manner in which South African contract law limits the extent of a plaintiff's recovery of damages caused by breach is controversial. Criticism has been expressed about, inter alia, the distinction between general and special damages, the convention requirement imposed for the recovery of special damages, and the approach of determining remoteness at the time of contracting and not of breach. It is expected that the current approach will be revised when the opportunity arises. In light of the debate around the current South African approach, and the need for its development, this study provides a detailed overview of the premise, purpose and operation of rules of remoteness. The study commences with a historical overview of the early civil and common law approaches to remoteness and their subsequent development in France, Germany and England. Against that background, the development of the South African approach is discussed and the various sources relied upon by South African courts placed in context. The study then considers three different theories of remoteness: the direct consequences theory, the adequate cause theory, and the foreseeability theory. The direct consequences theory is discussed in the context of English law. The discussion highlights the necessity for the remoteness inquiry to take account of the facts of a particular case. The adequate cause theory, in turn, is explored in the context of German law. The theory's development into a discretionary, policy-based approach to remoteness is discussed with reference to the adoption of the Schutzzwecklehre. The foreseeability theory is explored in two contexts: its application in English law and under the model instruments. The overview of English law shows that a distinction between general and special damages is often unhelpful and even detrimental to the remoteness inquiry. The recent move in English law toward an agreement-centred approach to remoteness is also evaluated with reference to the South African convention principle. Finally, foreseeability as applied in the model instruments is evaluated. It is concluded that the flexible approach to the foreseeability theory seen in the model instruments addresses many of the identified limitations of traditional foreseeability tests. The study suggests that the remoteness inquiry should focus on a discovery of what parties could reasonably have taken into account when contracting. For this reason, it is recommended that remoteness be determined with reference to the time of contract conclusion; and that it should not depend upon the parties' intentions or agreement about liability for damages. Additionally, the study finds that the foreseeability inquiry cannot draw a rigid distinction between the nature and extent of a loss. Ultimately, it is suggested that a flexible approach to foreseeability would resolve many of the limitations of the current South African approach. Such an approach would align the remoteness inquiry to notions of fairness and economic efficiency, as well as the constitutional value of human dignity.
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    Set-Off in South African Law : challenges and opportunities
    (Stellenbosch : Stellenbosch University, 2016-03) Van Deventer, Susanna Maria; Myburgh, Franziska; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law
    ENGLISH ABSTRACT : This study focuses on the principles surrounding the operation of set-off in South African law. It is evident that no uniform answer exists to the question of how set-off operates: it either operates automatically as soon as its requirements are met or in terms of a declaration by one of the parties, but with retrospective effect. This thesis examines the uncertainty and problems surrounding these two opposing approaches to the operation of set-off, and further considers the impact of sections 90 and 124 of the National Credit Act 34 of 2005 (NCA) on set-off. In order to evaluate the two approaches to set-off, their historical origin, practical effect and the policy considerations informing them are analysed. This analysis is also informed by comparative perspectives on the operation of set-off adopted in civilian jurisdictions. The thesis further examines the circumstances in which a party will be precluded from relying on set-off. It focuses on an agreement between the parties to exclude set-off, waiver of a party’s right to set-off and the circumstances in which a party can be estopped from invoking set-off. It is shown that neither of the approaches to set-off adopted in South African law provides an adequate explanation for the way in which set-off is applied in practice. The thesis illustrates that this can be attributed to the fact that the automatic approach affords insufficient recognition to the autonomy of contracting parties and that the retrospective approach leads to practical difficulties. The uncertainties which exist regarding the exclusions of the right to invoke set-off are also highlighted, as well as the difficulty in reconciling these exclusions with the automatic approach to set-off. The examination of sections 90 and 124 of the NCA focuses on the interpretation of these sections, and considers whether and to what extent, a limitation on a credit provider’s right to invoke set-off is desirable. It is concluded that these sections are unclear and that, although certain limitations of a credit provider’s right to invoke set-off are justified, the conditions set by the NCA are too stringent. Legislative reforms are suggested to clarify and improve the protection granted by the NCA. Finally, it is argued that South African courts should take note of international developments regarding the operation of set-off and opt for a solution which is more in line with modern commercial reality. Such a solution can be found in the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law, which recommend that set-off should be effected by a notice with prospective effect. It is shown that this approach ensures legal certainty and offers a solution which aligns legal and practical reality.