Interpretation of Contracts

Carole Lewis

in Southern Cross

Published in print November 1996 | ISBN: 9780198260875
Published online March 2012 | e-ISBN: 9780191682162 | DOI:
Interpretation of Contracts

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Ascertaining the intention of the parties to a contract is a matter of considerable complexity in modern South African law. The difficulties that have beset jurists and courts (in the classical Roman period, in the period of Roman-Dutch law, and still now) are substantially similar. The main theme this is that whereas the theory of contractual formation has moved in a subjective direction — certainly in the last couple of decades in South African law — the construction of the content of a contract has moved in an objective direction. In deciding whether a contract has come into existence, the law has moved from verba to voluntas: from objective formalism to ascertaining real consensus. However, in determining the meaning of a contract we have moved largely from voluntas to verba. The chapter examines the possible explanations for the dichotomy and shows why the underlying theory of contract should also inform our approach to interpretation, and that we need now to seize the opportunity to bring them together. Such a move is not only required by logic and equity, but is in accord with the spirit which prevailed in Roman law and which determined the development of Roman-Dutch contract law.

Keywords: South African law; contract law; contract interpretation; contractual formation; Roman-Dutch contract law

Chapter.  12039 words. 

Subjects: History of Law

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