oa Comparative and International Law Journal of Southern Africa - The basis of contractual liability in English law and its influence on the South African law of contract
The basis of contractual liability enquires as to the reason or justification for the enforcement of contractual obligations in the positive law of a legal system. Although it is often regarded as axiomatic that contracts are the product of agreement between the contracting parties, the matter is not that simple because there are subjective and objective approaches to intention. The English law generally shows a preference for an objective test for contractual liability. However, an objective postulate also does not encapsulate a single, uniform principle of liability. Consequently, case law often reflects a variety of principles which either in unison, or in opposition, account for contractual liability in various circumstances. This article examines the principles which determine contractual liability in the English law against the contextual backdrop of the development of modern English contract theory. The extent to which the South African law has been influenced in this regard by the English law is also briefly explored.
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