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
Metus in the Roman law of obligations
- Authors: Glover, Graham B
- Date: 2004
- Language: English
- Type: Article
- Identifier: vital:6336 , http://hdl.handle.net/10962/d1012401
- Description: [From the introduction]: An entire title of book four of Justinian’s Digest is devoted to explaining the doctrine of metus as it was understood at the time of the codification of the Roman law. That title begins with the following statement: "The praetor says: 'I will not hold valid what has been done under duress.'" This unequivocal statement of legal principle illustrates, in very general terms, that by the time the Corpus Iuris Civilis was compiled, the Romans disapproved of persons using threats to inspire the creation of legal obligations, and that it was possible to avoid the legal consequences of an obligation because it was induced by metus. The Corpus Iuris Civilis remains our most valuable source of authority with regard to how duress cases were treated in Roman times. But the relevant textual sources pose some fundamental difficulties. Far from containing a coherent, structured analysis of the law, the relevant passages in fact amount to a jigsaw-puzzle of uncoordinated, haphazard, and occasionally contradictory legal propositions
- Full Text:
- Date Issued: 2004
- Authors: Glover, Graham B
- Date: 2004
- Language: English
- Type: Article
- Identifier: vital:6336 , http://hdl.handle.net/10962/d1012401
- Description: [From the introduction]: An entire title of book four of Justinian’s Digest is devoted to explaining the doctrine of metus as it was understood at the time of the codification of the Roman law. That title begins with the following statement: "The praetor says: 'I will not hold valid what has been done under duress.'" This unequivocal statement of legal principle illustrates, in very general terms, that by the time the Corpus Iuris Civilis was compiled, the Romans disapproved of persons using threats to inspire the creation of legal obligations, and that it was possible to avoid the legal consequences of an obligation because it was induced by metus. The Corpus Iuris Civilis remains our most valuable source of authority with regard to how duress cases were treated in Roman times. But the relevant textual sources pose some fundamental difficulties. Far from containing a coherent, structured analysis of the law, the relevant passages in fact amount to a jigsaw-puzzle of uncoordinated, haphazard, and occasionally contradictory legal propositions
- Full Text:
- Date Issued: 2004
- «
- ‹
- 1
- ›
- »