Duress in contract law south africa
The court, per Mhlambi J, stated that duress is a recognised ground that vitiates a contract that is otherwise valid. The court stated the requirements for the remedy – the fear must be reasonable; the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. A more modern and coherent test In a contract law court proceeding, in order for duress to exist, there must be an illegal or wrongful act. When a claim of duress is filed, it is because a party wants to prove that their agreement to a contract wasn't made in good faith, making the essential requirements necessary to form a contract unfulfilled. ‘ [I]t is clear that a contract may be vitiated by duress (metus), the raison d’etre of the rule apparently being that intimidation or improper pressure renders the consent of the party subtracted to duress no true consent. . . Duress may take the form of inflicting physical violence upon the person of a contracting party or of inducing in him a fear by means of threats.
South African contract law is ‘essentially a modernised version of the Roman-Dutch law of contract ’, which is itself rooted in canon and Roman laws. In the broadest definition, a contract is an agreement two or more parties enter into with the serious intention of creating a legal obligation.
A striking illustration of the formalist approach in the South African law of contract can be. found by revisiting the majority judgment of the Supreme Court of Appeal in Brisley v Drotsky.55. By endorsing the Shifren principle56 the Court revealed its commitment that first and foremost, the rule-book governs the law. 1.1 Definition of a contract Dale Hutchinson et al The Law of Contract in South Africa at p 6 defines a contract as an agreement entered into by two or more persons with the intention of creating a legal obligation or obligations. This means that not all agreements between parties constitute a contract. As far as the law of contract is concerned, after exposing the difficulties inherent in the current approach, and placing the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. A more modern and coherent test A contract cannot be invalidated by a party to that contract who claims duress because the other party threatened to sue them for a larger amount, because the filing of a law suit is a legally permitted action. A claim of duress is distinct from instances where the consideration offered by one This is also the approach suggested by Christie, The Law of Contract in South Africa (6 th Ed at 315): " The point is that every person who complains of duress is entitled to be seen as the sort of person he or she is, but to prevent the remedy getting out of hand he is not entitled to resile from the contract if he claims to have succumbed to the fear that would be unreasonable even for the sort of person he is".
‘ [I]t is clear that a contract may be vitiated by duress (metus), the raison d’etre of the rule apparently being that intimidation or improper pressure renders the consent of the party subtracted to duress no true consent. . . Duress may take the form of inflicting physical violence upon the person of a contracting party or of inducing in him a fear by means of threats.
A striking illustration of the formalist approach in the South African law of contract can be. found by revisiting the majority judgment of the Supreme Court of Appeal in Brisley v Drotsky.55. By endorsing the Shifren principle56 the Court revealed its commitment that first and foremost, the rule-book governs the law. 1.1 Definition of a contract Dale Hutchinson et al The Law of Contract in South Africa at p 6 defines a contract as an agreement entered into by two or more persons with the intention of creating a legal obligation or obligations. This means that not all agreements between parties constitute a contract. As far as the law of contract is concerned, after exposing the difficulties inherent in the current approach, and placing the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith.
The legal mechanism that handles this problem is the doctrine of duress. 2 But analytical work on this doctrine in. South Africa is as rare as the case law. Coercion
In a contract law court proceeding, in order for duress to exist, there must be an illegal or wrongful act. When a claim of duress is filed, it is because a party wants to prove that their agreement to a contract wasn't made in good faith, making the essential requirements necessary to form a contract unfulfilled. ‘ [I]t is clear that a contract may be vitiated by duress (metus), the raison d’etre of the rule apparently being that intimidation or improper pressure renders the consent of the party subtracted to duress no true consent. . . Duress may take the form of inflicting physical violence upon the person of a contracting party or of inducing in him a fear by means of threats. A striking illustration of the formalist approach in the South African law of contract can be. found by revisiting the majority judgment of the Supreme Court of Appeal in Brisley v Drotsky.55. By endorsing the Shifren principle56 the Court revealed its commitment that first and foremost, the rule-book governs the law. 1.1 Definition of a contract Dale Hutchinson et al The Law of Contract in South Africa at p 6 defines a contract as an agreement entered into by two or more persons with the intention of creating a legal obligation or obligations. This means that not all agreements between parties constitute a contract. As far as the law of contract is concerned, after exposing the difficulties inherent in the current approach, and placing the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. A more modern and coherent test A contract cannot be invalidated by a party to that contract who claims duress because the other party threatened to sue them for a larger amount, because the filing of a law suit is a legally permitted action. A claim of duress is distinct from instances where the consideration offered by one
This is also the approach suggested by Christie, The Law of Contract in South Africa (6 th Ed at 315): " The point is that every person who complains of duress is entitled to be seen as the sort of person he or she is, but to prevent the remedy getting out of hand he is not entitled to resile from the contract if he claims to have succumbed to the fear that would be unreasonable even for the sort of person he is".
As far as the law of contract is concerned, after exposing the difficulties inherent in the current approach, and placing the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. A more modern and coherent test A contract cannot be invalidated by a party to that contract who claims duress because the other party threatened to sue them for a larger amount, because the filing of a law suit is a legally permitted action. A claim of duress is distinct from instances where the consideration offered by one
A contract cannot be invalidated by a party to that contract who claims duress because the other party threatened to sue them for a larger amount, because the filing of a law suit is a legally permitted action. A claim of duress is distinct from instances where the consideration offered by one This is also the approach suggested by Christie, The Law of Contract in South Africa (6 th Ed at 315): " The point is that every person who complains of duress is entitled to be seen as the sort of person he or she is, but to prevent the remedy getting out of hand he is not entitled to resile from the contract if he claims to have succumbed to the fear that would be unreasonable even for the sort of person he is". 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 uniquely South African law of contract from its Roman, Roman-Dutch and English roots. • to provide the students with a thorough understanding of the essential elements of a valid contract in South African law.