The legal nature of performance reconsidered
Author Ferdinand Botha
Affiliations: Researcher, Max Planck Institute for Comparative and International Private Law
Source: South African Law Journal, Volume 137 Issue 2, p. 246-268
South African law regards the performance of a legal obligation as a bilateral act which requires the co-operation and agreement of the debtor and the creditor. In addition to the actual act of performance, the debtor must therefore also enter into a so-called debt extinguishing agreement with the creditor before the debtor will be released from the obligation. It is argued that this approach is outdated from a comparative perspective and that it tends to hinder, rather than assist, the courts in resolving disputes. The suggestion is made that South Africa should adopt the so-called real performance theory from German law instead. This theory asks only whether a particular act of performance can be assigned to a certain obligation and does not require a debt extinguishing agreement for a debtor to be released from the obligation.