Browsing by Author "Visser, Wiaan"

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    The fair price rule and the South African law of contract: A historical and comparative analysis
    (Stellenbosch : Stellenbosch University, 2018-12) Visser, Wiaan; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This thesis focuses on legal rules that allow a court to set aside or modify a contract on the basis of a large discrepancy in the value of the respective performances. These “fair price” or “just price” rules have been the object of debate and disagreement among jurists for centuries. Although one such a rule previously formed part of the South African common law of contract, the prevailing view is that the price does not have to be fair or reasonable for a contract to be valid. However, due to changing attitudes to price control both locally and internationally, this view might require reconsideration. To this end, the study traces the treatment of fair price rules historically and comparatively, and thereafter evaluates the application of these rules in the South African context by taking account of certain underlying values and principles of the law of contract. The historical overview studies the development of the fair price rule from its origins in late classical Roman law to its reception and subsequent abolition in modern law. The overview shows that jurists during the Middle Ages had a well thought-out understanding of the fair price rule as a doctrine aimed at enforcing a market-oriented just price in order to avoid the exploitation of weakness, price discrimination, fraud, and exceptionally harsh bargains. The comparative overview in turn shows that while a variety of different approaches to dealing with substantively unfair prices exist, there are signs of an increased willingness to engage in price control. It is also evident that more modern fair price rules follow a flexible approach to the determination of whether the price is fair. This approach does not only take account of the objective disparity in the value of the respective contractual performances, but also of the procedural fairness of the conclusion of the contract. These modern fair price rules follow a similarly flexible approach to restitution, by investing the court with the discretion to adapt the contract price, or to avoid the contract and award damages to the disadvantaged party. Building on the comparative and historical analysis, the thesis concludes that it would be both desirable and suitable that a modern fair price rule, which follows a flexible approach to the determination of fairness, should be introduced into South African common law of contract. This can be achieved through the development of the common-law rule that contracts may not be contrary to public policy. It is argued that this will lead to a law of contract that is better equipped to provide relief to prejudiced contracting parties, and that gives greater effect to a number of fundamental values of our law of contract, such as dignity, party autonomy, good faith, and Ubuntu.