Of Dorothy’s dog, ‘poststructural’ fairy tales … and the real: Power, Poverty and the General Principles of the South African Law of Contract
Authors Jaco Barnard-Naudé
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 467 – 480
South African precedent does not allow for the consideration of the validity or enforceability of a contract in terms of the good faith principle. Yet, the principle of good faith permeates the foundational ideals and the spirit of South Africa’s post-apartheid Constitution. After re-emphasising the by now trite point that all legal rules have distributive consequences and that the common law represents a set of political choices, the article discusses the philosophical history of good faith and defends it as the primary transformative ethical device of the general principles of contract law, arguing that an elevated status for good faith in contract is implicit in the post-liberal reading of the Constitution and the ills that such a reading seeks to address. With reference to the work of Michel Foucault, the article concludes that curial consideration of the question whether a party to a contract has abused her bargaining power, forms a critical part of the transformative work that contract law is (also) constitutionally mandated to do.