Department of Mercantile Law

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Browsing Department of Mercantile Law by Author "Bruwer, Elizabeth"

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    Vereniging van die koopreg : kontraksluiting in 'n historiese, regsvergelykende en internasionale perspektief
    (Stellenbosch : Stellenbosch University, 2000-12) Bruwer, Elizabeth; Lubbe, G.; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: International trade has increased tremendously in the last few decades. When parties to a contract find themselves in different countries and each has its own legal background, specific problems originate in connection with formation of the contract, its execution, the breach thereof and so forth. The predominant theme of this work is the question of how a diversity of legal rules should be approached in an international context. The focus is on contract formation, and the rules of offer and acceptance are therefore examined. As a result of diverse legal cultures, different legal systems often have contradicting rules pertaining to contract formation, which can lead to a variety of problems if the contracting parties are not aware of the inconsistencies. According to international private law's choice of law-rules, such a contract should be governed by the rules of the legal system with which it has the closest connection. Connecting factors can be for instance the domicile of particular persons at various times, the situs of property, or the place where a juristic act was performed. One specific legal system will therefore rule the contract. There is however another possibility: that of a uniform substantive law. This involves the unification of different legal rules into one set of rules to be applied to contracts which are concluded in an international context. Taking into account that many of the rules and doctrines applicable to contract law have a common philosophical origin, the necessity of a convergence of these rules may be questioned. However, most of the rules ended up being different in different legal systems, and parties to an international transaction will probably not have the same idea about questions such as the possibility to revoke an offer before acceptance, or the precise moment of formation of the contract. A comparative study of the rules of offer and acceptance illustrates this point. International efforts to unify the law in this regard are explored, in order to assess the possibility of a uniform substantive law of contracts. Some of the international instruments seem to be able to find a middle way between conflicting rules, although it may not always be the best way to solve the problem. It is argued that harmony is not necessarily advanced by a codification of existing rules, and that a common legal culture which can lead to the incremental development of harmonious legal principles may be an alternative solution for the problem of incompatible national legal systems in an international context.