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...
| Main Author: | |
|---|---|
| Format: | Article |
| Language: | Afrikaans |
| Published: |
North-West University
2019-10-01
|
| Series: | Potchefstroom Electronic Law Journal |
| Subjects: | |
| Online Access: | https://journals.assaf.org.za/index.php/per/article/view/6457 |
| _version_ | 1818444434304401408 |
|---|---|
| author | Hanri Magdalena Du Plessis |
| author_facet | Hanri Magdalena Du Plessis |
| author_sort | Hanri Magdalena Du Plessis |
| collection | DOAJ |
| description | 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. |
| first_indexed | 2024-12-14T19:15:52Z |
| format | Article |
| id | doaj.art-c9ae817895774ea2ad3a98ab832d1422 |
| institution | Directory Open Access Journal |
| issn | 1727-3781 |
| language | Afrikaans |
| last_indexed | 2024-12-14T19:15:52Z |
| publishDate | 2019-10-01 |
| publisher | North-West University |
| record_format | Article |
| series | Potchefstroom Electronic Law Journal |
| spelling | doaj.art-c9ae817895774ea2ad3a98ab832d14222022-12-21T22:50:37ZafrNorth-West UniversityPotchefstroom Electronic Law Journal1727-37812019-10-012210.17159/1727-3781/2019/v22i0a6457Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of ContractHanri Magdalena Du Plessis0University of South AfricaIn 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.https://journals.assaf.org.za/index.php/per/article/view/6457Bona fidescommon law of contractcontractual fairnessgood faithlegal historical comparisonlegal pluralism |
| spellingShingle | Hanri Magdalena Du Plessis Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of Contract Potchefstroom Electronic Law Journal Bona fides common law of contract contractual fairness good faith legal historical comparison legal pluralism |
| title | Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of Contract |
| title_full | Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of Contract |
| title_fullStr | Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of Contract |
| title_full_unstemmed | Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of Contract |
| title_short | Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of Contract |
| title_sort | harmonising legal values and ubuntu the quest for social justice in the south african common law of contract |
| topic | Bona fides common law of contract contractual fairness good faith legal historical comparison legal pluralism |
| url | https://journals.assaf.org.za/index.php/per/article/view/6457 |
| work_keys_str_mv | AT hanrimagdalenaduplessis harmonisinglegalvaluesandubuntuthequestforsocialjusticeinthesouthafricancommonlawofcontract |