Developing a test for economic duress in the South African law of contract: a comparative perspective
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70832 , vital:29748 , https://hdl.handle.net/10520/EJC53694
- Description: Until the recent Supreme Court of Appeal decision in Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) SA 339 (SCA), the courts in South Africa consistently adopted the attitude that so-called 'economic duress' does not constitute a valid cause of action in our law of contract. In this sense, our law lags behind other jurisdictions, which have recognised for some time that threats of economic harm can be just as coercive as threats to person or property, especially in the modern commercial word. While the indication given in the Medscheme case that our law could develop to recognise cases of economic duress is a welcome one, the court's statement in this regard was merely obiter, and the court consequently undertook no analysis of the issue. In this article, an attempt is made to develop guidelines for dealing with such cases, in accordance with a more modern and coherent test for duress in contract generally. Much of the discussion involves comparative analyses of the authorities on economic duress in Anglo-American jurisdictions, since there is a dearth of authority on the point in South Africa.
- Full Text: false
- Date Issued: 2006
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70832 , vital:29748 , https://hdl.handle.net/10520/EJC53694
- Description: Until the recent Supreme Court of Appeal decision in Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) SA 339 (SCA), the courts in South Africa consistently adopted the attitude that so-called 'economic duress' does not constitute a valid cause of action in our law of contract. In this sense, our law lags behind other jurisdictions, which have recognised for some time that threats of economic harm can be just as coercive as threats to person or property, especially in the modern commercial word. While the indication given in the Medscheme case that our law could develop to recognise cases of economic duress is a welcome one, the court's statement in this regard was merely obiter, and the court consequently undertook no analysis of the issue. In this article, an attempt is made to develop guidelines for dealing with such cases, in accordance with a more modern and coherent test for duress in contract generally. Much of the discussion involves comparative analyses of the authorities on economic duress in Anglo-American jurisdictions, since there is a dearth of authority on the point in South Africa.
- Full Text: false
- Date Issued: 2006
Methinks he doth protest too much - recovering unjustified payments made under duress and protest
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70744 , vital:29724 , https://hdl.handle.net/10520/EJC55014
- Description: The private law doctrine of duress, although mostly discussed in the context of the law of contract in South Africa, is also relevant in the law of unjustified enrichment. Where an unjustified payment or transfer of some kind has been induced by duress, in a situation where there is no contractual relationship between the parties, the aggrieved party will be entitled to reclaim the payment or transfer. The principles of enrichment law will apply in such cases.
- Full Text: false
- Date Issued: 2006
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70744 , vital:29724 , https://hdl.handle.net/10520/EJC55014
- Description: The private law doctrine of duress, although mostly discussed in the context of the law of contract in South Africa, is also relevant in the law of unjustified enrichment. Where an unjustified payment or transfer of some kind has been induced by duress, in a situation where there is no contractual relationship between the parties, the aggrieved party will be entitled to reclaim the payment or transfer. The principles of enrichment law will apply in such cases.
- Full Text: false
- Date Issued: 2006
The inducement of a contract by duress of goods - a reappraisal
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70734 , vital:29722 , https://hdl.handle.net/10520/EJC54192
- Full Text: false
- Date Issued: 2006
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70734 , vital:29722 , https://hdl.handle.net/10520/EJC54192
- Full Text: false
- Date Issued: 2006
The test for duress in the South African law of contract
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70756 , vital:29726 , https://hdl.handle.net/10520/EJC53682
- Description: Although it is well-known that a contract induced by duress is voidable at the instance of an aggrieved party, little analysis of this cause of action has been undertaken in South Africa. The test for duress developed by Wessels, and adopted by the courts in Broodryk v Smuts NO 1942 TPD 47, has exercised a vice-grip over this area of contract law. In this article, all five elements of the traditional South African test are subjected to critical examination, and their deficiencies are exposed and discussed. It is argued that the test is neither logically nor conceptually satisfactory, and has hampered development of this area of law. Trends in other jurisdictions, belonging to both the civil-law and the common-law families, are analysed and compared to South African law. On this basis a more modern and coherent test is proposed. This test would be two-pronged, and involve an assessment, in turn, of the lawfulness of the threat made and of whether the party who in fact succumbed to an unlawful threat and entered into the contract was legally justified in doing so.
- Full Text:
- Date Issued: 2006
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70756 , vital:29726 , https://hdl.handle.net/10520/EJC53682
- Description: Although it is well-known that a contract induced by duress is voidable at the instance of an aggrieved party, little analysis of this cause of action has been undertaken in South Africa. The test for duress developed by Wessels, and adopted by the courts in Broodryk v Smuts NO 1942 TPD 47, has exercised a vice-grip over this area of contract law. In this article, all five elements of the traditional South African test are subjected to critical examination, and their deficiencies are exposed and discussed. It is argued that the test is neither logically nor conceptually satisfactory, and has hampered development of this area of law. Trends in other jurisdictions, belonging to both the civil-law and the common-law families, are analysed and compared to South African law. On this basis a more modern and coherent test is proposed. This test would be two-pronged, and involve an assessment, in turn, of the lawfulness of the threat made and of whether the party who in fact succumbed to an unlawful threat and entered into the contract was legally justified in doing so.
- Full Text:
- Date Issued: 2006
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