Department of Private Law

Permanent URI for this community

https://scholar.sun.ac.za/handle/10019.1/130

Browse

Browsing Department of Private Law by Author "Botha, Ferdinand Marthinus"

Now showing 1 - 1 of 1
  • Thumbnail Image
    Item
    Determining the consequences of illegal contracts
    (Stellenbosch : Stellenbosch University, 2022-03) Botha, Ferdinand Marthinus; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This thesis investigates the consequences of illegal contracts from a comparative perspective. Illegality usually raises two questions: to what extent may the contract still be enforced and under what circumstances may a plaintiff recover a performance rendered under the contract. When confronted with these questions, South African courts typically resort to constructs such as the maxims ex turpi causa non oritur actio and in pari delicto potior est conditio defendentis. These maxims respectively express the propositions that an illegal contract may not be enforced and that a plaintiff who is tainted by illegality may not obtain restitution of any performance rendered under the contract. The problem with these maxims is that they tend to divert attention away from other policy considerations that may also be important. In addition, it is not clear why South African courts find illegal contracts to be void in some cases and valid but unenforceable in others. In search of a more convincing approach to illegal contracts, the thesis therefore investigates how foreign jurisdictions determine the consequences of illegality. The comparative overview reveals that foreign jurisdictions generally aim to give effect to the same kind of policies when determining the consequences of illegality, although they employ different methods. Some apply strict rules with a limited number of exceptions while others give courts a discretion to determine the consequences in a particular case with reference to a list of policy considerations. These policy considerations are studied in more detail by analysing three particularly challenging scenarios from a comparative perspective – illegal consumer loans, illegal employment contracts and illegal work performed by contractors in the construction industry. From these analyses the thesis concludes by developing several claims. The first claim is that the solution to any illegality problem ultimately amounts to a balancing of various factors, irrespective of whether the illegality derives from legislation or public policy. Second, it is argued that the most satisfactory method for determining the consequences of illegal contracts is to give courts a discretion that must be exercised with reference to a range of policy considerations. And finally, it is concluded that South Africa should discard references to the ex turpi and par delictum maxims and adopt a more flexible approach to determining the consequences of illegality.