This case dealt with a contractual term that limited the right of access to the courts. The second part examines the extent to which the law of contract has embraced constitutional values in view of the fact that the Constitution of the Republic of South Africa, the Constitution is the supreme law of the land. It is worth noting that the CPA makes explicit liability for gross negligence. By using this site, you agree to the Terms of Use and Privacy Policy. Contract law basically deals with contractual private dealings and thus regulates socio-economic relationships in the private sphere. A consumer may approach an ombud, the consumer courts, the National Consumer Commission and the National Consumer Tribunal to obtain relief. The classical model of law is based on the assumption that there is near perfect competition in the market, and that parties actually negotiate the terms of their contract.

The application for cancellation failed on the basis that forfeiture, in circumstances where three-quarters of the purchase price has already been paid, would have been a disproportionate penalty for breach. Nonetheless, the enactment of the CPA does not mean that the law has achieved perfection. The speculative undisclosed motives attributed to the applicant in the papers before me pacta without substance and should best be disregarded. International Construction Law Review. The impact of pacta sunt servanda in the law of contract Login.

Pacta sunt servanda states that disserrtation created in terms of an agreement must be honoured; therefore parties who enter into contractual agreements with the relevant intention are obliged to respect the agreement.

It follows that a court does not pacta a general discretion to decide what is fair and equitable and then to determine dissertation policy with reference to his or pacta views on fairness. Vattel promoted the view that ‘every body bound himself for the future only on the stipulation of the presence of the actual conditions’ and so ‘with a change of the condition also the relations originating from the situation would undergo a change’.

Our common law does not recognise agreements that are contrary to public policy and will declare contracts invalid on that ground 82 Public policy is rooted in the Constitution and the values that underlie it.


The research in this dissertation investigates the impact of pacta sunt servanda in the South African law of contract. Man has corrupted and destroyed it! Barkhuizen v Napier supra n 7 at par To deny him judicial redress for injuries he suffered in doing so, which came about as a result of the negligent conduct of the hotel, offends against notions of justice dissertatikn fairness The decision in Afrox has been largely criticised because the patient was only confronted with an exemption clause at disxertation very last minute and it is unrealistic to have expected him to seek a better contract elsewhere.

dissertation pacta sunt servanda

Retrieved from ” https: Test your visual vocabulary with our question challenge! Abbas Arts,p.

dissertation pacta sunt servanda

The formal rules embedded in contract law have not been flexible enough to cope with the complexities of modern society. It also discusses the interaction between sanctity of contract and fairness, as well as equity in terms of the common law of contract.

The impact of pacta sunt servanda in the law of contract

Because the doctrine is a risk to the security of treaties, as its scope is relatively unconfined, the conditions in which it may be invoked must be carefully noted.

Similarly, the High Court in Naidoo v Birchwood Hotel declined to enforce exemption clauses and the disclaimer notices on the basis that doing so would have been unjust and unfair. Cserne Freedom of Contract and Paternalism: Clausula rebus sic stantibus Latin for “things thus standing”in public international lawis the legal doctrine allowing for a treaty to become inapplicable because of a fundamental change of circumstances.

The last part will include a conclusion. Its scope needs to be expanded and developed to be able to fully accommodate fairness and equity. The enactment of the CPA, aimed at protecting public servannda, reinforces the need to incorporate the societal values such as fairness, justice, and equality into contract law. The question that arises is whether fairness and equity are fully accommodated under the rubric and scope of public policy.

Unequal bargaining power is a relevant consideration in determining whether a contractual term is contrary to public policy. Courts interfere with contractual provisions agreed upon between the parties only servandz exceptional cases.


Where contractual terms are not prohibited outright by the CPA, they are subjected to the requirement of fairness and reasonableness. Naude SALJ The doctrine is part of customary international law but is also provided for in the Vienna Convention on the Law of Treatiesunder Article 62 Fundamental Change of Circumstance. The Constitutional Court upheld the time limitation clause.

In this research both interpretation and drafting of contracts will be examined to identify their impact on the principle of pacta sunt servanda. It requires that any notice or provision that purports first, to limit in any way the risk of the supplier; secondly, to constitute an assumption of risk by the consumer; xissertation, impose an obligation on the consumer to indemnify the supplier; or lastly to be an acknowledgement of any fact by the consumer, to be drawn to the attention of the consumer in a conspicuous manner and form that is likely to attract the attention of an ordinary alert consumer, having regard to the circumstances.

Employment is provided to 91 permanent members of staff, additional casual staff as well as indirectly to secondary staff and service providers.

Dissertation pacta sunt servanda

The CPA is of particular significance insofar as the protection and regulation of consumer transactions are concerned. Secondly, terms misleading or deceiving the consumer; or subjecting the consumer to fraudulent conduct.

Although the common law of contract is trying to establish a balance between the sanctity of contract on the one hand, and the interests of the weak contracting party on the other hand, the balance has not yet been achieved. Courts, accordingly, should continue to gradually develop common law by infusing contract law doctrines with constitutional values.

A consumer may approach an ombud, the consumer courts, the National Consumer Commission and the National Consumer Tribunal to obtain relief.