Remedies, repentance and the doctrine of election in South African contract law
- Authors: Glover, Graham B
- Date: 2019
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186712 , vital:44527 , xlink:href="https://hdl.handle.net/10520/EJC-1a756528b2"
- Description: One of the main features of South Africa’s law on remedies for breach of contract is the doctrine of election. In cases where a major breach has occurred, or a cancellation clause entitles the aggrieved party to seek cancellation, the aggrieved party has an election either to cancel or to claim performance, and will be held to that binary choice. In Primat Construction CC v Nelson Mandela Bay Metropolitan Municipality the Supreme Court of Appeal recently recognised an exception to the usual election rule, specifically in cases involving repudiation. In terms of the ‘repentance principle’, a party who experiences repudiation may initially seek performance in the hope that the breaching party will repent of their breach; but if it does not, the aggrieved party may then change its mind and seek cancellation. This essay considers the history of the doctrine of election and the path to the recognition of its qualifier, the repentance principle. Thereafter, the essay poses the question whether it remains desirable for the strict doctrine of election to continue to apply in South African law, bearing in mind that a strict election can have an unduly constraining effect on the interests of the non-breaching (or ‘innocent’) party. This analysis is informed by the broader policy considerations behind the recognition of the repentance principle; the fact that other analogous exceptions to the election rule do exist; and the fact that other jurisdictions do not adopt such a strict approach to the aggrieved party’s choice of remedy.
- Full Text:
- Authors: Glover, Graham B
- Date: 2019
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186712 , vital:44527 , xlink:href="https://hdl.handle.net/10520/EJC-1a756528b2"
- Description: One of the main features of South Africa’s law on remedies for breach of contract is the doctrine of election. In cases where a major breach has occurred, or a cancellation clause entitles the aggrieved party to seek cancellation, the aggrieved party has an election either to cancel or to claim performance, and will be held to that binary choice. In Primat Construction CC v Nelson Mandela Bay Metropolitan Municipality the Supreme Court of Appeal recently recognised an exception to the usual election rule, specifically in cases involving repudiation. In terms of the ‘repentance principle’, a party who experiences repudiation may initially seek performance in the hope that the breaching party will repent of their breach; but if it does not, the aggrieved party may then change its mind and seek cancellation. This essay considers the history of the doctrine of election and the path to the recognition of its qualifier, the repentance principle. Thereafter, the essay poses the question whether it remains desirable for the strict doctrine of election to continue to apply in South African law, bearing in mind that a strict election can have an unduly constraining effect on the interests of the non-breaching (or ‘innocent’) party. This analysis is informed by the broader policy considerations behind the recognition of the repentance principle; the fact that other analogous exceptions to the election rule do exist; and the fact that other jurisdictions do not adopt such a strict approach to the aggrieved party’s choice of remedy.
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Tyrannical masters no more?: Promissory insurance warranties after Viking Inshore Fishing (Pty) Ltd v Mutual and Federal Insurance Co Ltd
- Authors: Glover, Graham B
- Date: 2019
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186701 , vital:44526 , xlink:href="https://hdl.handle.net/10520/EJC-1b0c21b6eb"
- Description: Federal Insurance Co Ltd for the law on promissory insurance warranties are considered. The article begins with an overview of the traditional position, which has been that such warranties are to be strictly interpreted and enforced, no matter the harshness of the result. Thereafter, the article discusses the contrasting decisions in Viking Inshore Fishing (Pty) Ltd v Mutual and Federal Insurance Co Ltd in the Western Cape High Court and the SCA. Wallis JA suggested on appeal that the strict traditional approach to promissory warranties was no longer appropriate, but without having to decide the point. The article next considers the implications of an obiter dictum of the SCA, in a matter relating to a court exercising admiralty jurisdiction, on insurance law in general. Thereafter, the article proposes that Wallis JA’s comments indicate an important change to our law on promissory warranties, specifically in relation to the need for there to be a causal link between the insured’s breach of the warranty and the loss suffered, before an insurer may exercise the power to repudiate the contract. Although others have made the causal-link argument before, this article tries to explain and situate this development in two doctrinal contexts: the modern law on contractual interpretation; and the doctrine of public policy. A supplementary argument relates to the drawing together of the law on promissory warranties with the rules relating to cancellation for major breach, in cases where an insurer pursues that remedy.
- Full Text:
- Authors: Glover, Graham B
- Date: 2019
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186701 , vital:44526 , xlink:href="https://hdl.handle.net/10520/EJC-1b0c21b6eb"
- Description: Federal Insurance Co Ltd for the law on promissory insurance warranties are considered. The article begins with an overview of the traditional position, which has been that such warranties are to be strictly interpreted and enforced, no matter the harshness of the result. Thereafter, the article discusses the contrasting decisions in Viking Inshore Fishing (Pty) Ltd v Mutual and Federal Insurance Co Ltd in the Western Cape High Court and the SCA. Wallis JA suggested on appeal that the strict traditional approach to promissory warranties was no longer appropriate, but without having to decide the point. The article next considers the implications of an obiter dictum of the SCA, in a matter relating to a court exercising admiralty jurisdiction, on insurance law in general. Thereafter, the article proposes that Wallis JA’s comments indicate an important change to our law on promissory warranties, specifically in relation to the need for there to be a causal link between the insured’s breach of the warranty and the loss suffered, before an insurer may exercise the power to repudiate the contract. Although others have made the causal-link argument before, this article tries to explain and situate this development in two doctrinal contexts: the modern law on contractual interpretation; and the doctrine of public policy. A supplementary argument relates to the drawing together of the law on promissory warranties with the rules relating to cancellation for major breach, in cases where an insurer pursues that remedy.
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Jantjie v The Minister of Labour Unreported Eastern Cape Division Case No 2193/2006
- Authors: Glover, Graham B , Beard, M
- Date: 2008
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186891 , vital:44545 , xlink:href="///C:/Users/User/Downloads/41DeJure648%20(1).pdf"
- Description: James Joyce once wrote that "mistakes ... are the portals of discovery" (Ulysses (1964) Ch 9). This aptly describes the legal significance of the judgment in Jantjie v Minister of Labour (unreported decision of the High Court, Eastern Cape Division, case no 3193/2006, decided on 2007-06- 14). In this case, Leach J had to deal with a matter of civil procedure that does not seem to have been dealt with in any reported judgment - the effect of an attorney of record mistakenly failing to sign a notice of motion where an application is brought before the High Court.
- Full Text:
- Authors: Glover, Graham B , Beard, M
- Date: 2008
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186891 , vital:44545 , xlink:href="///C:/Users/User/Downloads/41DeJure648%20(1).pdf"
- Description: James Joyce once wrote that "mistakes ... are the portals of discovery" (Ulysses (1964) Ch 9). This aptly describes the legal significance of the judgment in Jantjie v Minister of Labour (unreported decision of the High Court, Eastern Cape Division, case no 3193/2006, decided on 2007-06- 14). In this case, Leach J had to deal with a matter of civil procedure that does not seem to have been dealt with in any reported judgment - the effect of an attorney of record mistakenly failing to sign a notice of motion where an application is brought before the High Court.
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The Condictio Indebiti and Unjust Factors (1)
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186869 , vital:44541 , xlink:href="file:///C:/Users/User/Downloads/69THRHR419%20(2).pdf"
- Description: Since the Supreme Court of Appeal has continued to avoid taking the step of recognising a general enrichment action,' the traditional enrichment actions of the common law remain fundamentally important to the operation of the law of unjustified enrichment in South Africa. Most significant of these is the condictio indebiti, which is probably the most well-known and liberally utilised enrichment action in South African law.2 In this article, the nature and scope of this condictio will be examined, and it will be shown that it has grown beyond its notionally traditional role of reversing payments or transfers made unjustifiably by mistake, to include causes of action in duress and protest. The implications of this for the condictio, as well as for the foundations of our enrichment law will then be examined, with reference to the two leading schools of enrichment law: the civilian school, typified by German law, and the common-law school, typified by English law.
- Full Text:
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186869 , vital:44541 , xlink:href="file:///C:/Users/User/Downloads/69THRHR419%20(2).pdf"
- Description: Since the Supreme Court of Appeal has continued to avoid taking the step of recognising a general enrichment action,' the traditional enrichment actions of the common law remain fundamentally important to the operation of the law of unjustified enrichment in South Africa. Most significant of these is the condictio indebiti, which is probably the most well-known and liberally utilised enrichment action in South African law.2 In this article, the nature and scope of this condictio will be examined, and it will be shown that it has grown beyond its notionally traditional role of reversing payments or transfers made unjustifiably by mistake, to include causes of action in duress and protest. The implications of this for the condictio, as well as for the foundations of our enrichment law will then be examined, with reference to the two leading schools of enrichment law: the civilian school, typified by German law, and the common-law school, typified by English law.
- Full Text:
The Condictio Indebiti and Unjust Factors (2)
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186880 , vital:44544 , xlink:href="///C:/Users/User/Downloads/69THRHR561%20(1).pdf"
- Description: Since the Supreme Court of Appeal has continued to avoid taking the step of recognising a general enrichment action,' the traditional enrichment actions of the common law remain fundamentally important to the operation of the law of unjustified enrichment in South Africa. Most significant of these is the condictio indebiti, which is probably the most well-known and liberally utilised enrichment action in South African law.2 In this article, the nature and scope of this condictio will be examined, and it will be shown that it has grown beyond its notionally traditional role of reversing payments or transfers made unjustifiably by mistake, to include causes of action in duress and protest. The implications of this for the condictio, as well as for the foundations of our enrichment law will then be examined, with reference to the two leading schools of enrichment law: the civilian school, typified by German law, and the common-law school, typified by English law.
- Full Text:
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186880 , vital:44544 , xlink:href="///C:/Users/User/Downloads/69THRHR561%20(1).pdf"
- Description: Since the Supreme Court of Appeal has continued to avoid taking the step of recognising a general enrichment action,' the traditional enrichment actions of the common law remain fundamentally important to the operation of the law of unjustified enrichment in South Africa. Most significant of these is the condictio indebiti, which is probably the most well-known and liberally utilised enrichment action in South African law.2 In this article, the nature and scope of this condictio will be examined, and it will be shown that it has grown beyond its notionally traditional role of reversing payments or transfers made unjustifiably by mistake, to include causes of action in duress and protest. The implications of this for the condictio, as well as for the foundations of our enrichment law will then be examined, with reference to the two leading schools of enrichment law: the civilian school, typified by German law, and the common-law school, typified by English law.
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The sharing of pension benefits on divorce: An inevitable affair?
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186723 , vital:44528 , xlink:href="Print only"
- Description: One of the invariable consequences of divorce is that the patrimonial assets of the marriage have to be divided up between the two parties. At a primary level, the way in which this will occur will be determined by a number of factors: the matrimonial property regime under which the parties had been married; the relevant provisions of the Divorce Act (Act 70 of 1979) that deal with the question of the patrimonial consequences of divorce; as well as any agreement on this often ticklish matter that can be reached by the parties prior to the divorce action. Approximately fourteen years ago, section 7 of the Divorce Act was amended to allow a divorced spouse to share in the pension interests of the other spouse. There is some polemic, though, as to the interpretation of this provision: in particular, it is not clear whether this pension benefit will automatically form part of the assets that are susceptible to division, or whether a prayer to this effect must specifically be sought. After a consideration of the current legal position regarding the sharing of pension benefits generally, this note will examine this specific debate.
- Full Text:
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186723 , vital:44528 , xlink:href="Print only"
- Description: One of the invariable consequences of divorce is that the patrimonial assets of the marriage have to be divided up between the two parties. At a primary level, the way in which this will occur will be determined by a number of factors: the matrimonial property regime under which the parties had been married; the relevant provisions of the Divorce Act (Act 70 of 1979) that deal with the question of the patrimonial consequences of divorce; as well as any agreement on this often ticklish matter that can be reached by the parties prior to the divorce action. Approximately fourteen years ago, section 7 of the Divorce Act was amended to allow a divorced spouse to share in the pension interests of the other spouse. There is some polemic, though, as to the interpretation of this provision: in particular, it is not clear whether this pension benefit will automatically form part of the assets that are susceptible to division, or whether a prayer to this effect must specifically be sought. After a consideration of the current legal position regarding the sharing of pension benefits generally, this note will examine this specific debate.
- Full Text:
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