Contract: General Principles

August 1st, 2017

Louis van Huyssteen, Gerhard Lubbe and Machiel Reinecke

Cape Town: Juta

(2016) 5th edition

Price: R 695 (incl VAT)

697 pages (soft cover)

Having particular regard to the developments in consumer protection law and constitutional jurisprudence, the fifth edition of Contract: General Principles provides a comprehensive guide to understanding the general principles of the law of contract in South Africa (SA).

The publication comprises 13 different chapters, which include –

  • an introduction to the concepts of obligation and contract;
  • the basis for contractual liability;
  • offer and acceptance;
  • consensus obtained by improper means;
  • formalities;
  • possibility of performance;
  • legality;
  • certainty;
  • contents and operation of a contract;
  • breach of contract;
  • remedies for breach of contract and cession; and
  • termination of obligations.

Each chapter contains its own detailed index to enable quick navigation to the specific issues on which a reader seeks clarity.

The chapters are structured to clearly and logically set out the essential elements and principles of contract – beginning with a detailed but not protracted account of the theoretical and historical foundations of contract law in SA – ideal for students.

The formulation of the chapters also highlights the concepts, which have been topical in recent, local and foreign jurisprudence. One such example of this is the chapter on improperly obtained consensus. This chapter follows the progress of our courts’ reasoning, moving away from delictual constructions to a reasonable and rational approach apt for a democracy predicated on equality, fairness and a growing protection of the ill-informed consumer.

There are various instances in other chapters where the implications of the Consumer Protection Act 68 of 2008 are set-apart and specifically addressed in relation to the topic at hand.

The new edition covers developments in contractual law up to the end of February 2016.  These include more substantial changes, for example, the evolution of good faith as a more discernible principle of law, discussed in particular in relation to pre-contractual conduct and issues of breach. Further, though to a lesser degree, the commentary on advancements in relation to technological innovations (such as electronic signature), cession and the legal nature of debts and methods of payments make this a most relevant and current resource.

While the publication does not stress the significant shift in the approach to the interpretation of contracts, it does note the latest case law on the topic. The divergence from the strict application of the parol evidence rule towards a more liberal and practical approach to interpretation, which includes surrounding and background circumstances, as well as the conduct of the parties in implementing agreements could have been expanded on.

On a stylistic front, cross-referencing is now simplified by numbered paragraphs. The subject matter is streamlined through the extensive use of headings and subheadings. This guides the reader through what could otherwise seem a complex convolution of principles and their requirements, relevant legislation and interrelated areas of law. The detailed footnotes provide the reader with context and expand on the rich and varied case law discussed in the text.

In the fast paced milieu of legal practice, there are arguably other resources, which delve less into the origins of the principles and set out more clearly and at a glance the key issues, current status and latest case law that is often the superseding reason for which a more experienced practising attorney consults a reference work.

Nevertheless, students and young professionals would do well to have this publication at hand. This is undeniably an all-encompassing account of contract law in SA as it stands.

Shelley Efthymiades is a candidate attorney at Webber Wentzel in Johannesburg.

This article was first published in De Rebus in 2017 (Aug) DR 44.