oa Comparative and International Law Journal of Southern Africa - What law determines the money of payment? Exploring a recent contribution to South African conflict of laws



The problem discussed in this article is essentially one of 'where to draw the line' between conflicting legal rules on money of payment issues. In deciding where such line lies, there is some merit in maintaining a distinction between contractual and non-contractual obligations. In the case of contractual obligations, the identity of the place of payment and the rate at which conversion must be effected should lie on the side of the lex causae, on the assumption that a decision on these matters goes to the substance of the obligation. As regards the right/duty to pay in local currency, the answer is less clear. This too, should as a point of departure be governed by the lex causae, as this gives better effect to the principle of the proper law of the contract. The courts, however, should have a discretion to have regard to the lex loci solutionis and apply such law in the interests of justice and fairness between the contracting parties. In the case of non-contractual obligations, it seems more fruitful to distinguish between the lex causae and the lex fori, with most money of payment issues being determined or governed by the lex fori.


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