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29 results on '"contract law"'

1. Contract from the Margins: The Becoming of a Minor Jurisprudence in the Minority Judgment of Froneman, J in Beadica 231 CC v Trustees for the time being of the Oregon Trust 2020 5 SA 247 CC

Author

Jaco Barnard-Naude

Subjects
becoming, contract law, fairness, minor jurisprudence, minority, Law in general. Comparative and uniform law. Jurisprudence, K1-7720
Abstract

This article explores the meaning of minor jurisprudence in the work of leading authors on the subject and concludes that the notion of becoming plays a major part in the philosophy of minor jurisprudence as a subtraction from or subversion of the major. The article then connects the preoccupation with becoming in minor jurisprudence to the notion of the hysteric's discourse in the work of Jacques Lacan, after which it moves to a consideration of Froneman, J's minority judgment in the Beadica case. The article suggests that Froneman's minor jurisprudence becomes in three modes: reliance on historical minor jurisprudences, deconstruction and imagination from the margins. As such, this becoming is an instance of hysterical discourse in Lacan's sense of the term.

Published
2024
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2. Marktwerking als publiek belang bij onvoorziene omstandigheden

Subjects
Contract Law, Unforeseen problems, Law and Economics: General, Law and economics, Contract law
Abstract

Wat zou het antwoord van het Nederlandse overeenkomstenrecht op plotselinge schaarste moeten zijn? In deze bijdrage staat de verhouding tussen schaarste, contractuele gebondenheid en publieke belangen centraal. Een markt, als verdelingsmechanisme van schaarse middelen en arbeid onder eindverantwoordelijkheid van de overheid, kan zelf als publiek belang worden beschouwd. Juist vanwege het denken in markten, kan het Nederlandse overeenkomstenrecht uitstekend worden uitgelegd in rechtseconomische termen. Vanuit rechtseconomisch perspectief is contractuele gebondenheid cruciaal voor een goed functionerende markt, ook bij plotselinge schaarste. Door een rechtseconomische analyse van het leerstuk van de onvoorziene omstandigheden, wordt de afgelopen coronarechtspraak geplaatst in het kader van een ideale markt en bovendien aangegeven waar rechtseconomische concepten dat leerstuk kunnen verhelderen.

Published
2023

3. The market as a public interest in unforeseen circumstances

Subjects
Contract Law, Unforeseen problems, k12 - Contract Law, Law and Economics: General, Law and economics, k00 - Law and Economics: General
Abstract

Wat zou het antwoord van het Nederlandse overeenkomstenrecht op plotselinge schaarste moeten zijn? In deze bijdrage staat de verhouding tussen schaarste, contractuele gebondenheid en publieke belangen centraal. Een markt, als verdelingsmechanisme van schaarse middelen en arbeid onder eindverantwoordelijkheid van de overheid, kan zelf als publiek belang worden beschouwd. Juist vanwege het denken in markten, kan het Nederlandse overeenkomstenrecht uitstekend worden uitgelegd in rechtseconomische termen. Vanuit rechtseconomisch perspectief is contractuele gebondenheid cruciaal voor een goed functionerende markt, ook bij plotselinge schaarste. Door een rechtseconomische analyse van het leerstuk van de onvoorziene omstandigheden, wordt de afgelopen coronarechtspraak geplaatst in het kader van een ideale markt en bovendien aangegeven waar rechtseconomische concepten dat leerstuk kunnen verhelderen.

Published
2023

4. The Constitutionalisation of the Test for Statutory Illegality in South African Contract Law: Cool Ideas v Hubbard 2014 4 SA 474 (CC)

Author

Odwa Golela

Subjects
Contract law, Statutory illegality, Constitutionalisation, Cool Ideas v Hubbard, Law in general. Comparative and uniform law. Jurisprudence, K1-7720
Abstract

This paper investigates the constitutionalisation of the test for statutory illegality (the test) in South African contract law, firstly through a careful evaluation of the manner in which the Constitutional Court (CC) applied the test in Cool Ideas v Hubbard, secondly through the manner in which the CC purports to constitutionalise the test in the said case, and thirdly through asking if such a method is desirable in the constitutional dispensation. It can be conceded that the approach taken by the main judgment to the application of the test in this case is more compelling than that taken by Froneman J. However, the fundamental differences in these approaches, particularly in the determination of the impact of the Constitution and its underlying values, highlight the need for an investigation into the test and the way it should operate in the constitutional dispensation. The paper begins by setting out the test and shows that it is capable of reflecting the values that underlie the Constitution (while maintaining a workable level of legal certainty) and that the test can operate in a manner that enhances the vision and goals of the Constitution. It also proposes a framework within which the various factors of the test should be weighed up, with a view to determining whether the contract under investigation is valid or invalid. Then the paper evaluates the CC's application of the test. It criticises the main judgment for its incomplete undertaking of the enquiry envisaged in sections 8(1) and (2) of the Constitution, as it took into account neither the "spirit, purport and objects" underpinning section 25(1), nor the fundamental values of the Constitution. It also criticises Froneman J's judgment for not connecting the value of fairness with the "spirit, purport and objects" underpinning section 25(1) or the broader fundamental values of the Constitution. Thereafter, it considers the manner in which the CC purports to constitutionalise the test. It points out that equity considerations apply in all matters, whether a substantive right is implicated or not, as they ensure that the "application" and "interpretation" of a statute enhance and are in line with the "objective normative value system" that is the Bill of Rights. Lastly, it considers the desirability of the CC's approach to the application of the test and its constitutionalisation. It points out that the main judgment goes to the extremes of objectivity in interpreting the relevant provisions of the Housing Consumers Protection Measures Act, 1998 (within the application of the test), while Froneman J goes to the extremes of subjectivity. In this regard, it suggests that courts can use the "balance of convenience" test to adjust their decisions to accommodate the circumstances of each case. Therefore, it concludes that the approach to constitutionalising the test lies somewhere between that of the main judgment and that of Froneman J

Published
2018
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5. Nudging in het contractenrecht ter bescherming van zwakkere partijen

Author

Bouwman, Tom, Faculteit REBO, Keirse, Anne, de Ridder, Denise, Anderson, Joel, and van Dongen, Emanuel

Subjects
contractsvrijheid, Contractenrecht, vulnerability, weaker parties, Contract law, behavioral research, freedom of contract, gedragswetenschappelijk onderzoek, kwetsbaarheid, nudging, autonomie, autonomy, zwakkere partijen, consumer law, consumentenrecht
Abstract

Contract law offers protection to those who are defined within the legal system as weaker parties, such as employees, tenants, and consumers. In that context, weaker parties are routinely and tacitly assumed to be acting in an economically rational manner, an assumption that affects when and how they are offered protection. But insights from behavioral science reveal that people – and thus weaker parties too – have limited cognitive capacities and by no means always make economically rational decisions. The discrepancy between how weaker parties actually make decisions and how they are assumed to do so leads to deficiencies in their current protection. Although nudging could potentially be applied to better protect weaker parties without restricting their freedom of contract, no systematic research yet exists on how to do that and what the limits are to how that may be done. This doctoral thesis therefore answers the question as to how nudging can contribute to the protection of weaker parties in Dutch contract law. The first part – the legal framework – addresses why, when and how weaker parties are protected, and the deficiencies of their current protection. The second part – the theoretical framework – analyses the potential and limits of using nudging to protect weaker parties. The third part – the case studies – applies the theoretical framework to three issues concerning the protection of weaker parties, illustrating the operation of the theoretical framework and making specific recommendations for applying nudging to protect weaker parties. Nudges that help people make their own decision can contribute to more and better protection in case various specific types of lack of cognitive capacity or lack of ability to resist occur and, indirectly, sometimes also to more and better protection in case a lack of information occurs. Steering nudges can contribute to more and better protection in case of a lack of cognitive capacity, a lack of ability to resist, or a lack of information in general. That nudging can help to protect weaker parties does not mean that it is a cure-all. Indeed, the scope of nudging is limited by several factors. But this is no reason to be skeptical about nudging to protect weaker parties in general. That would amount to throwing the baby out with the bathwater. After all, the research presented here provides a theoretical framework on the basis of which legal practitioners, including legislative drafters and judges, can assess whether and, if so, how nudging can be applied to protect a weaker party. In doing so, this research contributes to a contract law in which adequate protection is offered not only to weaker parties who are economically rational, but also to real-world weaker parties.

Published
2023

6. Nudging in het contractenrecht ter bescherming van zwakkere partijen

Subjects
contractsvrijheid, Contractenrecht, vulnerability, weaker parties, Contract law, behavioral research, freedom of contract, gedragswetenschappelijk onderzoek, kwetsbaarheid, nudging, autonomie, autonomy, zwakkere partijen, consumer law, consumentenrecht
Abstract

Contract law offers protection to those who are defined within the legal system as weaker parties, such as employees, tenants, and consumers. In that context, weaker parties are routinely and tacitly assumed to be acting in an economically rational manner, an assumption that affects when and how they are offered protection. But insights from behavioral science reveal that people – and thus weaker parties too – have limited cognitive capacities and by no means always make economically rational decisions. The discrepancy between how weaker parties actually make decisions and how they are assumed to do so leads to deficiencies in their current protection. Although nudging could potentially be applied to better protect weaker parties without restricting their freedom of contract, no systematic research yet exists on how to do that and what the limits are to how that may be done. This doctoral thesis therefore answers the question as to how nudging can contribute to the protection of weaker parties in Dutch contract law. The first part – the legal framework – addresses why, when and how weaker parties are protected, and the deficiencies of their current protection. The second part – the theoretical framework – analyses the potential and limits of using nudging to protect weaker parties. The third part – the case studies – applies the theoretical framework to three issues concerning the protection of weaker parties, illustrating the operation of the theoretical framework and making specific recommendations for applying nudging to protect weaker parties. Nudges that help people make their own decision can contribute to more and better protection in case various specific types of lack of cognitive capacity or lack of ability to resist occur and, indirectly, sometimes also to more and better protection in case a lack of information occurs. Steering nudges can contribute to more and better protection in case of a lack of cognitive capacity, a lack of ability to resist, or a lack of information in general. That nudging can help to protect weaker parties does not mean that it is a cure-all. Indeed, the scope of nudging is limited by several factors. But this is no reason to be skeptical about nudging to protect weaker parties in general. That would amount to throwing the baby out with the bathwater. After all, the research presented here provides a theoretical framework on the basis of which legal practitioners, including legislative drafters and judges, can assess whether and, if so, how nudging can be applied to protect a weaker party. In doing so, this research contributes to a contract law in which adequate protection is offered not only to weaker parties who are economically rational, but also to real-world weaker parties.

Published
2023
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8. Frontiers Of Change And Governance In Contractual Agreements: The Possible Role Of Exploitation - Uniting Reformed Church De Doorns V President Of The Republic Of South Africa 2013 5 Sa 205 (Wcc)

Author

Luanda Hawthorne

Subjects
Constitution, contract law, public policy, inequality of bargaining power, exploitation, Law in general. Comparative and uniform law. Jurisprudence, K1-7720
Abstract

In the South African common law of contract there appears to be support for the open norm of public policy as a general clause to ameliorate the effects of unfair contracts and terms which are contrary to public policy. The courts have on several occasions held that contracts or terms would be regarded as contrary to public policy had they come about where the parties were in an unequal bargaining relationship and this inequality was linked with another factor(s). In this case note it is argued that the element of unequal bargaining position may be contrary to public policy if it is linked with exploitation as the other factor. The element of exploitation was highlighted in the recent court decision of Uniting Reformed Church, De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC). In this case the applicant church owned three properties on which were three schools under the control of the State. The church and the State had concluded 20-year notarial leases in respect of each of the properties. A term in the contract provided that after the expiration of the lease period the church would transfer the properties to the State free of charge. After the expiration of the leases the State demanded the transfer of the properties. The church disputed the claim, averring that the term was unenforceable because the parties had been in an unequal bargaining position and that the enforcement of the term constituted expropriation in contravention of the property clause of the Constitution. It is submitted that expropriation without compensation is not only contrary to section 25 of the Constitution but constitutes exploitation. It is suggested that where exploitation results from an unequal bargaining relationship it provides the "further factor" that, together with the inequality in bargaining power, is sufficient to establish that the term or contract is in conflict with public policy. This contributes to giving meaning to the term "public policy". To support this argument, reference is made to the German Civil Code, the Swiss Civil Code, consumer protection legislation and the philosophy of Wertheimer.

Published
2014
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9. Yet another call for a greater Role for good Faith in the South African Law of Contract: Can we banish the Law of the Jungle, while avoiding the Elephant in the Room?

Author

Andre M Louw

Subjects
Contract law, Good faith, Bona fides, Substantive equity, Ubuntu, Public policy, Fair dealing, Judicial conservatism, Legal uncertainty, Constitutional values, Constitutionalisation of the common law, Boni mores in contract law, Unfair contracts, Inequality, Consumer protection, Law in general. Comparative and uniform law. Jurisprudence, K1-7720
Abstract

This article examines the current approach of the South African courts to the role of good faith or bona fides in contracts, as well as the courts’ stated reasons for this approach. The article specifically examines how arguments based on good faith have fared in the Constitutional Court to date, and the prospects for law reform to emanate from that court in the near future. The author suggests an understanding of good faith which he believes is in line with the Constitution of the Republic of South Africa, 1996 and argues that in terms of such an understanding of a robust good faith doctrine the legal fraternity or the courts can avoid some of the dangers that the judges of the Supreme Court of Appeal have warned about in this context in recent years. The author shares some concluding thoughts on the pressing need for law reform with respect to the role and presence of good faith in contracts.

Published
2013
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10. Loonoffers in tijden van Corona

Subjects
Labour Law, Corona Virus, Contract Law, arbeidsrecht, wage reduction, loonoffers, wijziging van arbeidsvoorwaarden
Abstract

Vanwege het nieuwe coronavirus (COVID-19) overwegen veel bedrijven de lonen van werknemers te verlagen. Sommige bedrijven vragen van de werknemers om 'een steentje bij te dragen', andere eisen loonoffers. In dit artikel wordt ingegaan op het juridisch kader voor eenzijdig wijzigen van arbeidsvoorwaarden, maar wordt ook gekeken naar de recente ontwikkelingen met betrekking tot deeltijdontslag die een interessante invalshoek op loonmatiging kunnen bieden. "This content was supported by the H2020 WorkYP project (GA number 870619) and reflects only author’s view.”

Published
2020
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11. Fundamental Consumer Rights Under the Consumer Protection Act 68 of 2008: A Critical Overview and Analysis

Author

R van Niekerk, PN Stoop, and W Jacobs

Subjects
Contract law, consumer protection, consumer rights, equality, privacy, choice, disclosure and information, fair and responsible marketing, fair and honest dealing, fair or unfair contract terms, fair value, quality and safety, product liability, Law in general. Comparative and uniform law. Jurisprudence, K1-7720
Abstract

South Africa was in need of a comprehensive framework of legislation, policies and government authorities to regulate consumer-supplier interaction. The Consumer Protection Act 68 of 2008, which was signed by the President of the Republic of South Africa on 29 April 2009 and published in the Government Gazette on 29 April 2009, now provides an extensive framework for consumer protection and aims to develop, enhance and protect the rights of consumers and to eliminate unethical suppliers and improper business practices. Certain areas of the common law regarding consumer rights have been codified by the Act and certain unfair business practices that were previously unregulated are now governed by the Act. The Act has a wide field of application. It applies to every transaction occurring within South Africa for the supply of goods or services or the promotion of goods or services and the goods or services themselves, unless the transaction is exempted from the application of the Act. The Act also specifically regulates aspects of franchise agreements. In terms of the Act, consumers obtain several new rights and some existing rights are broadened and reinforced. These rights are: the right to equality in the consumer market; privacy; choice; disclosure and information; fair and responsible marketing; fair and honest dealing; fair, just and reasonable terms and conditions; and fair value, good quality and safety. The last right in terms of the Act deals with a supplier's accountability to consumers. The authors critically analyse and discuss these rights. It is clear that the Act is written in favour of the consumer.

Published
2010

12. Blockchain en contractenrecht

Author

Tjong Tjin Tai, Eric, Department of Private, Business and Labour Law, and Contracts and networks

Subjects
blockchain, contract law
Abstract

Explanation of blockchain and legal consequences

Published
2021

13. Boeken 1 en 5 van het nieuwe BW : meer van hetzelfde voor rechtspersonen en vennootschappen ?

Author

Régine, Feltkamp, Cornelis, Ludovicus, Privaat- en economisch recht, Ondernemingen & Contracten, and Vriendenkring VUB

Subjects
Law of obligations, fundamental rights, Contract Law, Sustainability, democracy, Human rights - business law, legal person, human rights, company
Abstract

This editorial addresses the fact that sustainability considerations are not at all taken into consideration in the new proposal of law of obligations for the Belgian civil code (as has also been the case for the new Belgian company code). This despite the fact that contract law and law of obligations lays at the basis of economic activities and exchanges and that private law should, in light of the constitutional rights and freedoms, participate in the transition to a more sustainable society by ensuring that private activity by amongst others companies is subject to / compliant with public order rules.

Published
2021

14. Flexibele arbeid

Author

Zekić, Nuna, Pennings, F.J.L., Sprengers, L.C.J., Department of Private, Business and Labour Law, and Department of Labour Law and Social Policy

Subjects
Jurisprudentie, EU recht, Contract Law, Flexibele arbeid, dismissal law, EU law, EU Labour Law, flexible employment, atypical work
Abstract

Dit hoofdstuk in het boek Europees Arbeidsrecht gaat over Flexibele Arbeid. De volgende EU-Richtlijnen worden behandeld: Richtlijn 1997/81/EG over deeltijdwerk, Richtlijn 1999/70/EG over tijdelijk werk en Richtlijn 2008/104/EG over uitzendwerk. Ook wordt ingegaan op de nog te implementeren Richtlijn 2019/1152 over voorspelbare en transparante arbeidsvoorwaarden voor zover het gaat over oproepwerk.

Published
2021

15. Flexible employment

Subjects
Contract Law, dismissal law, flexible employment, atypical work
Published
2020

16. Flexibele arbeid

Subjects
Contract Law, dismissal law, flexible employment, atypical work
Published
2020

17. Multi-party contracts and linked contracts

Subjects
networks, linked contracts, multi-party contracts, contract law
Abstract

Analysis of Dutch law regarding multi-party contracts and linked contracts, with comparative remarks

Published
2019

18. Meerpartijenovereenkomst en samenhangende overeenkomsten

Author

Tjong Tjin Tai, Eric, Department of Private, Business and Labour Law, and Contracts and networks

Subjects
networks, linked contracts, multi-party contracts, contract law, humanities, health care economics and organizations
Abstract

Analysis of Dutch law regarding multi-party contracts and linked contracts, with comparative remarks

Published
2019

19. Meerpartijenovereenkomst en samenhangende overeenkomsten

Subjects
networks, linked contracts, multi-party contracts, contract law, humanities, health care economics and organizations
Abstract

Analysis of Dutch law regarding multi-party contracts and linked contracts, with comparative remarks

Published
2019

22. Beginselen van vermogensrechtelijk privaatrecht

Author

Régine, Feltkamp, Ondernemingen & Contracten, and Privaat- en economisch recht

Subjects
Contract Law, obligation, Tort Law, private law
Abstract

overzicht van de basisbegrippen en -beginselen van het privaatrecht

Published
2018

23. De procesovereenkomst. Over de vrijheid van partijen het civiele proces vorm te geven

Author

Knigge, M.W., Snijders, H.J., and Leiden University

Subjects
Arbitration, Procedural law, Party autonomy, Contract law, Agreement as to proceedings, Jurisdiction, Evidence, Forum selection clause
Abstract

In this dissertation the agreement as to proceedings is the central point. By means of an agreement as to proceedings, parties diverge from procedural law. It is relevant to conduct research into agreements as to proceedings, as they may contribute to a swift and efficient course of the civil proceedings. In addition, research into these agreements can result in a better insight into the question about the control over the proceedings. Who ultimately has the right to determine the course of affairs during the proceedings? Is it the parties, whose substantive rights are at issue, or is it the government, which makes the civil proceedings available? Three main questions are to be distinguished in this research. Firstly, the admissibility of agreements as to proceedings has been examined. To what extent can parties validly conclude an agreement as to proceedings? Secondly, the effect of agreements as to proceedings has been examined. What are the consequences of an agreement as to proceedings concluded by parties? Finally, it has been investigated what rules are applicable to such agreements.

Published
2012

24. Enkele courante overeenkomsten nader bekeken

Author

Ralph DE WIT and Privaat- en economisch recht

Subjects
Contract Law, Contractenrecht
Abstract

beschrijving van benoemde overeenkomsten uit het BW: koop (inclusief Incoterms en CISG), huur van goederen, aanneming van werk, dading

Published
2011

26. Postcontractuele bedingen

Author

Sagaert, Vincent, Cornelis, L., Vanderschot, S. Stijns En K., Privaat- en economisch recht, and Economisch Recht

Subjects
Contract Law, Postcontractuele bedingen, Verbintenissenrecht, Law
Abstract

Juridische analyse van posctontractuele bedingen

Published
2006

29. De koop-verkoopbelofte, optie met de bluts en de buil

Author

Cornelis, Ludovicus, Maertens, Anne-Sofie, and Economisch Recht

Subjects
Contract Law, Gebruikelijke contracten, Contractenrecht, Verbintenissenrecht, Opties
Abstract

Juridische analyse van de koop-verkoopbelofte

Published
2004

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