The South African approach to the rectification of agreements subject to constitutive formalities : one step too many
Date
2014-01
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Juta Law
Abstract
This article examines the South African approach to the rectification of agreements subject
to constitutive formal requirements. It focuses on the rule that such an agreement must first
comply with formalities ex facie the document recording it, before a court may consider
whether the traditional requirements for rectification have been met. In particular, the
primary justifications for this rule are assessed: first, a void agreement cannot be rectified
and, secondly, ex facie compliance promotes the functions of formalities. An analysis of
South African case law reveals not only that these assumptions are questionable, but that
the rule is inconsistently applied and leads to the drawing of tenuous distinctions. A brief
investigation of both civilian and common-law approaches suggests further that the South
African method is based on a misconception of the purpose of rectification: it conflates the
correction of the document recording the agreement with the enforcement of that agreement
once it is corrected. This leads to the conclusion that the requirement of ex facie compliance
should be abolished as a preliminary step and that a South African court should rather
consider whether awarding a claim for rectification would defeat the objects of formalities in
general.
Description
CITATION: Myburgh, F. 2014. The South African approach to the rectification of agreements subject to constitutive formalities : one step too many? South African Law Journal, 131(4):787-818.
The original publication is available at https://journals.co.za/content/journal/ju_salj
The original publication is available at https://journals.co.za/content/journal/ju_salj
Keywords
rectification of agreements subject, document agreements, constitutive requirements, constitutive formalities
Citation
Myburgh, F. 2014. The South African approach to the rectification of agreements subject to constitutive formalities : one step too many? South African Law Journal, 131(4):787-818.