Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of Contract

In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African common law of contract. Firstly, it is shown how the idea of good faith as an open norm in Roman law was inspired by Greek philos...

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Bibliographic Details
Published inPotchefstroom electronic law journal Vol. 22; no. 1; pp. 1 - 25
Main Author Du Plessis, Hanri Magdalena
Format Journal Article
LanguageEnglish
Portuguese
Afrikaans
Published North-West University (Potchefstroom Campus) 2019
North-West University
Subjects
Bona fides
common law of contract
contractual fairness
good faith
Law
legal historical comparison
legal pluralism
legal historical comparison
legal pluralism
ubuntu
common law of contract
Roman law of contract
contractual fairness
Bona fides
good faith
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Summary:In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African common law of contract. Firstly, it is shown how the idea of good faith as an open norm in Roman law was inspired by Greek philosophy and it is argued that ubuntu as an underlying value of the customary law can infuse good faith in the common law of contract in similar fashion. Secondly, an important distinction between the two concepts is identified. Although both concepts promote contractual justice between the contracting parties, ubuntu entails a further duty to promote the social and economic well-being of the parties as well as that of the greater community. Hence, in contrast to good faith, ubuntu is concerned with the promotion of substantive equality in private dealings.
ISSN:1727-3781
1727-3781
DOI:10.17159/1727-3781/2019/v22i0a6457