Equity and certainty in contract law
Author F Brand
Affiliations: SC BA LLB LLM LLD (hc); former Judge of the Supreme Court of Appeal; Judge of the Appeal Court of Botswana; Justice of the Supreme Court of Fiji; Judge of the International Commercial Court of Qatar; Professor Extraordinary of Private Law at the University of the Free State; Honorary Professor of Law at the University of Stellenbosch.
Source: Acta Juridica, 2021, p. 141 – 176
The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.