Illegal contracts and the burden of proof
Date
2015-01
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Juta Law
Abstract
South African law, in line with a number of prominent jurisdictions, recognises the general
rule that when the legality of a contractual term is in dispute, the party who alleges
illegality bears the burden of proof. Possible justifications for the general rule are explored
and it is concluded that the rule is supported by established principles of the law of
evidence, as well as by the pacta servanda sunt principle, which requires that freely
concluded agreements should be enforced. It further is concluded that in disputes over the
legality of restraint of trade clauses there appears to be no compelling reason why the law
should deviate from the general rule by exceptionally placing the burden of proof on the
party seeking enforcement. The mere fact that parties sometimes agree to these terms in
situations of inequality does not suffice. However, those who advocate greater sensitivity
for the position that contracting parties find themselves in when they supposedly exercise
their contractual autonomy express a legitimate concern. A solution supported here is that
South African law should address this problem directly by extending the existing categories
of cases of improperly obtained consent to include cases of exploitation of certain specific
situations of weakness. Such a development would reinforce, rather than subvert, the
pacta servanda sunt principle.
Description
CITATION: Du Plessis, J. 2015. Illegal contracts and the burden of proof. South African Law Journal, 132(3):664-688.
The original publication is available at https://journals.co.za/content/journal/ju_salj
The original publication is available at https://journals.co.za/content/journal/ju_salj
Keywords
illegal contracts, common law, burden of proof
Citation
Du Plessis, J. 2015. Illegal contracts and the burden of proof. South African Law Journal, 132(3):664-688.