Doctoral Degrees (Private Law)

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Browsing Doctoral Degrees (Private Law) by browse.metadata.advisor "Lubbe, G. F."

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    Die grondslag van kontraktuele gebondenheid
    (Stellenbosch : Stellenbosch University, 2004-04) Olivier, Pierre J. J.; Lubbe, G. F.; Stellenbosch University. Faculty of Law. Department of Private Law.
    ENGLISH ABSTRACT: An overview of the historical development of contract law and its underlying theory, spanning from Roman times to the present day, and in Western European and Anglo American systems, shows that the gradually developing will theory dominated in the early nineteenth century. It was, however, also in the nineteenth century that the first cracks in this theory were observed. First, sociological, political and economic factors, brought about by the Industrial Revolution, the rise of socialism and of labour, required a new, more humane approach. Secondly, with the emergence of a new economic system, new technical problems came to the fore: how were problems of mistake, interpretation, implied terms and derogation to be solved, unless reliance was placed, in each case, on untenable fictions? Thus, towards the last quarter of the nineteenth century, an intense and unparalleled juristic debate ensued, mainly in Europe, but later also in England and the United States of America. New approaches, e.g. that a strict and uncompromising declaration be followed, was proposed. The outcome of this debate was the emergence of the so-called confidence theory. The basis of this approach is that, whatever a person's real intention may have been, he so conducts himself as to lead the other party, as a reasonable person, to believe that the first party has assented to the contract as proposed or understood by the second party, the first party is bound by the impression he created. The principle was clearly stated by Blackburn J in Smith v Hughes (1871) LR 6 OB 597, which has since become one of the famous dicta in the law of contract, and forms part of the English law. It should be stressed that the Blackburn approach was not alien to Europe, where the gradual and natural development of the common law was overtaken by codification The French Codification retained the pure will theory. Under the Dutch code, the so-called will-reliance system was developed, akin to the Blackburn approach. In German law, however, the De Groot view was followed: the mistaken party was permitted to 'resile' from the 'contract' but under obligation to compensate the 'innocent' party's negative interest. In South Africa, the basic point of departure is the will theory but supplemented by the confidence theory This system is made possible by our law of procedure, where two remedies, the justus error approach and the contractual consent approach are available. As both these remedies have the same objective, viz. to protect the legitimate interests of the party that was misled, they require the same substantive law requirements. The confidence theory has imbedded itself so deeply in South African, European and English law, that it is now recognized by some as the key, not only to the solution of the dissensus problem, but also in cases of interpretation, supplementation and derogation. The combination of will and reliance are the foundation stones of contractual liability. These two principles have developed (and are still developing) from society's pre-positive, moral, ethical, political, economic, religious and other values, which have been and are still being absorbed in the body of legal rules. This process of development is informed by the norms and rules relating to public policy, public interest, the bani mores and good faith. These norms and rules are recognized and applied in the legal systems of the United States of America, England and Europe. They form part of our law, but unfortunately our courts are extremely conservative in recognizing and applying them. If we wish to obtain and sustain social and contractual justice, more weight should be accorded to these values.
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    The judicial regulation of state commercial activity
    (Stellenbosch : University of Stellenbsoch, 2007-12) Quinot, G.; Van der Walt, A. J.; Lubbe, G. F.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The state participates in the market place in a large number of ways, spending millions annually. It buys and sells goods and services; it employs a massive workforce; it acquires, develops and disposes of land; it engages in all kinds of financial transactions; it sets up companies, holds shares and enters into partnerships. Yet, the legal treatment of the state as commercial player remains an enigma. In South African law there is no shortage of legal rules that apply or can potentially apply to state commercial activity, but there is nevertheless no coherent view of the conceptualisation of state commercial activity and as a result no clarity on how such conduct should be legally regulated. A voluminous, but extremely fragmented collection of statutory mechanisms aims to regulate a large variety of matters connected to state commercial activity. The courts have shown an almost schizophrenic attitude towards the application of the common law to these state actions, alternating between opting to apply general contract law and general administrative law rules. Constitutional transformation in South Africa necessitates a critical reevaluation of the legal approach to the regulation of state commercial activity. This necessity flows from a number of factors that converge in the judicial regulation of state commercial activity. These factors include a shift in the nature and function of the state, including the judiciary under the new constitutional dispensation; the use of commercial conduct to advance important transformation goals; the proper relationship between courts in protecting fundamental societal values captured in the Constitution and the executive as the key driver of social change; and the role of law in this changing environment. An analysis of the judicial regulation of state commercial activity creates an opportunity to probe basic questions about legal methodology, particularly in a transformative context such as South Africa. A central theme in this reassessment is the role of dichotomous reasoning in legal methodology, based on sharp distinctions between monolithic concepts such as public/private, state/private enterprise, rule/standard, contract/administrative action, delict/contract that no longer seem to adequately relate to experience in the real world. An analysis of South African case law on state commercial activity reveals the underlying judicial premise that all such state action can be classified as either administrative or contractual in nature. Once this conceptual classification is done the rules that apply follow automatically. State commercial activity is consequently subjected to either administrative law or private law rules in a manner that denies or obfuscates the choice on the part of the individual judge. The criteria used to classify the nature of the action under the classification approach have varied over time. The most prominent criteria are the source of the power exercised and the presence of superior power, with the courts currently alternating between these two. However, these criteria cannot be formulated with certainty and they do not provide consistent guidelines. While the criteria identify important aspects of state commercial activity that merit increased judicial control, the relationships between the criteria and the ensuing substantive regulation and particularly the relationships between them remain nebulous. Ultimately, the classification approach is characterised by excessive conceptualism and formalism. The reality that judges choose what regulation to apply to particular instances of state commercial activity is hidden. The application of specific substantive rules is made to seem natural, inevitable and selfevident. This closes off dialogue about that choice. Two alternatives to the classification methodology exist in South African law, namely an exclusively private law approach and a comprehensive public law approach. The exclusively private law approach highlights the commercial nature of the state action to the effect that state contracting is treated on par with all other forms of (private) commercial activity. However, it is questionable whether private law regulation can adequately address the regulatory concerns specific to the public context of state conduct. An analysis of this alternative approach identifies promising private law doctrines that can inspire such regulation, but significant further development is required before the desired level of regulation will be feasible on private law grounds. The comprehensive public law approach insists on the consistent application of public law rules to all state conduct, irrespective of the commercial nature of that conduct. Although this option may seem highly desirable, especially because it ensures public scrutiny of all state conduct, it is not ideal either. Particularly problematic is the high cost of such regulation and resultant inefficiency that may not be realistic given the current demands on South African public administration. The German and French legal systems provide examples of a third alternative approach in the form of distinct legal figures that exist between contract and administrative law. Recognition of such a distinct figure provides the prospect of developing a separate set of regulation tailored to the specific needs of that figure. A separate branch of government contract or government commercial law can thus be created. In South African law it may be possible to stimulate such development by recognising state contracts as a separate class of contract. However, it is doubtful whether the development of a third regulatory category will encourage the integration of public and private law rules to overcome the conceptualism of the current approach; it could also reinforce conceptualism by adding a third conceptual category. The most promising alternative methodology is premised on a more complex view of the interacting factors that inform judicial regulation and, by extension, legal treatment of state commercial activity. Such an approach perceives the distinctions between the various relevant concepts and factors not as sharp dichotomies, but as continuous and fluid relationships. It recognises that the legal treatment of a specific instance of state commercial activity is a function of the relationship between the various concepts and factors. Such an approach calls for more open and direct engagement with all the factors informing the regulation of state commercial activity. Ultimately, it requires individual judges to take responsibility for the choices they make in their involvement in state commercial activity by means of the regulatory control they exercise. It accordingly fosters dialogue and public debate about the role of law in social phenomena such as state commercial activity. This approach is in line with a culture of justification and transformative constitutionalism that ground the democratic enterprise in South Africa.
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    The legal nature of preference contracts
    (Stellenbosch : Stellenbosch University, 2003-04) Naude, Tjakie; Lubbe, G. F.; Stellenbosch University. Faculty of Law. Department of Private Law.
    ENGLISH ABSTRACT: The various constructions of rights of pre-emption encountered in South African case law all have some merit. This is confirmed by the multiplicity of types of preference contracts encountered in German law especially. The tendency of South African courts and writers to portray one approach as the only correct one to the exclusion of all other views, results in tension and confusion, all the more because of the failure to investigate the relevant policy considerations comprehensively. The confusion is compounded by what amounts to a breakdown of the system of precedents with judgments being based on incorrect interpretations of previous decisions and with scant regard for contrary decisions. No certainty exists regarding the construction of the contractual right of pre-emption in Roman and Roman-Dutch law, nor is it clear what figure or figures were received into South African law. The Germanic concept of tiered ownership that forms the historical basis for the Oryx remedy, does not form part of our law. This accounts for the difficulty that courts and writers have in explaining this remedy in terms of Romanist terminology, and the resort to the language of fiction. German law and English law, relied upon in South African case law, do not support a uniform construction of all rights of pre-emption as creating an enforceable duty to make an offer upon manifestation of a desire to sell. The almost unanimous support of US courts for a remedy by which the holder can ultimately obtain performance of the main contract upon conclusion of a contract with a third party, challenges the hypothesis suggested by German law that the default construction of preference contracts should be the bare preference contract which only creates a negative obligation. The very cryptic way in which rights of pre-emption are normally drafted, makes it difficult to even identify the main purpose of the parties. It is therefore not easy to classify preference contracts into the different types identified in this study as notional possibilities. A default regime is therefore highly desirable in the interest of legal certainty. The choice of a default regime should be made on the basis of recognised policy considerations, particularly on the basis of an equitable balancing of typical parties' interests and in view of communal interests balanced against the demand for legal certainty. The choice of default regime cannot be based merely on historical authority or precedent (which is in any event unclear in the present context) or unsubstantiated claims that one model is more logical or commercially useful than another. When rules are chosen as the default regime, these rules must, as far as possible, be reconciled with the existing conceptual structure of our law to prevent contradictions and inconsistencies. A policy analysis reveals that three default types of preference contract should be recognised, each with a clearly delineated field of application. Firstly, where the agreement allows the grantor to contract with a third party, the holder has the right to contract with the grantor at the terms agreed with the third party. Such a preference contract can therefore be regarded as an option conditional upon conclusion of a contract with a third party. Such contracts are rare in South Africa. In other cases, the default rule should be that the grantor must first give the holder an opportunity to contract before he contracts with a third party. The default construction of this latter type of preference contracts depends on whether the preference contract itself predetermines the main contract price. If so, the holder has a right or option to contract at that price upon any manifestation of a desire to conclude the relevant type of contract. However, where the preference contract does not predetermine the price, or refers to a price that the grantor would accept from third parties, any manifestation of a desire to sell should not be sufficient to trigger the holder's right. The grantor and society have an interest in having her freedom to negotiate with third parties to obtain the best possible price curtailed as little as possible. In such cases, the default rule should be that the holder is only entitled to conclusion of the main contract upon breach in the form of a contract with or offer to a third party. The default rule should also be that such preference contracts - which will be treated as ordinary preference contracts - only terminate upon the grantor actually contracting with and performing to a third party within a reasonable time after the holder declined the opportunity to match those terms, and provided the identity of the third party was disclosed to the holder on request. The holder therefore cannot lose his preferential right by a rejection of an outrageously high offer by the grantor. Options and preference contracts are closely related and overlapping concepts. The type of preference contract that grants a conditional right to contract can often be understood as a conditional option (or at least as a conditional option subject to a resolutive condition that the grantor does not want to contract anymore). The traditional distinction between options and rights of first refusal can only be maintained in respect of some types of preference contracts. These are negative or bare preference contracts which only give rise to remedies aimed at restoring the status quo ante the breach, as well as those preference contracts creating conditional rights to contract which courts refuse to treat as conditional options because their wording implies a duty to make or accept an offer, or because the requirement of certainty precludes them from being options.
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    Securities within the realm of private law : a theoretical and practical analysis of the legal nature of shares
    (Stellenbosch : Stellenbosch University, 2019-04) Meissner, Ilke Ingrid; Lubbe, G. F.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT : This thesis provides practical and theoretical perspectives on the legal nature of shares. In South Africa and beyond, shares have undergone significant transformation over the last decades. They are held and transferred through a complex net of intermediaries. While commercial practice and financial markets have devised efficient and pragmatic holding and transfer mechanisms, the changes brought about by computerisation and a pervasive model of systemic intermediation have unsettled the existing consensus on the legal, conceptual underpinning of shares. The thesis therefore aims to provide clarity on the legal nature of holding mechanisms, the legal nature of transfer mechanisms and the legal nature of shares viewed more abstractly within the context of the taxonomy of private law. The thesis approaches the first two questions historically and comparatively to show how the legal understanding of holding and transfer mechanisms has changed. While the nature of intermediation has changed dramatically, the thesis shows that the legal concepts and mechanisms underlying the holding of shares predominantly have proved to be sufficiently adaptable. This cannot be said to be the case when considering the legal nature of transfer mechanisms. Traditional transfer mechanisms, such as assignment, negotiation and delivery have largely been replaced by mechanical, account-based transfer ones. On this basis, the thesis suggests that the continued application of the principles of cession to a South African analysis of transfer should be scrutinised in a more fundamental fashion. To complement the discussion, it is shown that conceptual alternatives to traditional doctrinal thinking can be found in a functional approach to legal reasoning and in a procedural “law of accounts” that synthesises the common characteristics shared by many rights held on accounts. Moreover, two theoretical models are considered that shed light on the question whether systemic intermediation leads to the creation of new and multiple assets which derive from a share and are held by lower-tier intermediaries and ultimate investors in place of the share itself. This approach, made popular by the introduction of “securities entitlements” by Article 8 of the UCC and also reflected in the notion of beneficial interests of a trust in English law, can be explained as establishing rights against the rights of a higher-tier intermediary. These rights function as assets. On the basis of the burdening of rights model, borrowed from German law, the application of the rights-against-rights approach to South African law is rejected, however. The thesis concludes that South African law evidences neither a multiplication of assets nor a division of ownership in relation to intermediaries. Lastly, the thesis considers the assertion that shares are, or should be, property or “property-like” to provide adequate protection to investors. An enquiry into the legal nature of shares is the overarching theme of the thesis that draws together its different parts. The thesis proposes an explanatory model that can be used to determine whether and under which circumstances obligations can have absolute effect in relation to third parties. It asserts that shares are obligations, but that a proper evaluation of the internal sphere (the issuer-investor bond) shows that shares are simultaneously object-like. The explanatory model suggests that obligations of this kind can serve as objects of other obligations (the external sphere) which may consequently have real or limited-real effect in relation to third-parties. The model therefore narrates the interrelation between property and obligations without calling into question the well-established fact that shares are personal rights, albeit with limited real effect.