Research Articles (Private Law)

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Browsing Research Articles (Private Law) by Author "Naude, Tjakie"

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    Unfair contract terms legislation: the implications of why we need it for its formulation and application
    (Juta Law Publishing, 2006) Naude, Tjakie
    INTRODUCTION: Legislative control over unfair contract terms is regarded in many countries as an essential tool in the law’s response to the abuses attendant upon the use of non-negotiated or standard contract terms. Some countries go further and extend statutory fairness control to negotiated terms. The need for unfair contract terms legislation has also repeatedly been pointed out in South Africa, including by a few judges and the Law Commission in their 1998 Report on Unreasonable Stipulations of Contracts and the Rectification of Contracts.
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    The use of black and grey lists in unfair contract terms legislation : a comparative perspective
    (Juta Law, 2007-01) Naude, Tjakie
    This contribution considers the mechanism of lists of prohibited and suspect terms ('black lists' and 'grey lists') in unfair contract terms legislation from a comparative perspective. It sets out the arguments in favour of the use of black and grey lists and considers and rejects criticism against their use. A comparative study leads to identification of general principles relevant to the drafting of lists. Some of the questions discussed are whether lists should be confined to consumer contracts and non-negotiated terms and whether and how a grey list should affect the burden of proof, on both of which international practice diverges. Finally, fourteen categories of terms which are commonly listed in various countries' legislation are identified and discussed.
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    Which transactions trigger a right of first refusal or preferential right to contract
    (Juta Law, 2006-01) Naude, Tjakie
    This contribution considers the delineation of the transactions that breach or 'trigger' a right of first refusal, thereby giving its holder the right to exercise his right and to enforce the main contract. Examples of questions on which there is either scant, conflicting or unpersuasive South African authority in this area include the effect of an involuntary sale on a right of pre-emption, of non-arm's length transactions between commercially related parties, and of an undertaking by the third party to render some unique performance which the holder cannot match. A comparative study of German and American law leads to proposals for residual rules on these and other contentious issues, including the effect of a 'package deal', that is, where the grantor of a right of pre-emption purports to sell the pre-emption property to a third party as part of a larger package. The article also seeks to encourage drafters of first refusal agreements to consider the appropriateness and cost-effectiveness of initiating negotiations on the areas of uncertainty and of drafting accordingly.