oa Comparative and International Law Journal of Southern Africa - The basis of contractual liability in Dutch law
|Article Title||The basis of contractual liability in Dutch law|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Affiliations||1 Dept of Private Law, UNISA|
|Publication Date||Nov 2004|
|Pages||377 - 403|
|Keyword(s)||Consensual approach, Construction of contracts, Contractual liability, Dutch law and Good faith|
Dutch law seems to favour a primarily consensual approach to contractual liability as corrected by reliance in appropriate instances. However, the principle of good faith (reasonableness and fairness) plays a telling role in the creation and construction of contracts. The implication is that objective and normative considerations could influence the creation or interpretation of consensual contracts which have little to do with actual party intention. Similarly, the application of the Dutch version of the reliance theory is heavily tinged with notions of good faith. However, the primarily consensual approach to contract formation in Dutch law is largely grounded on the premise that in the majority of cases actual and declared intention coincide and, consequently, that reliance only serves a supplementary function in the exceptional cases where there is a divergence between actual and declared intention. This article examines the principles of contractual liability in the Dutch law and suggests that the treatment of specifically the principle of good faith in the Dutch law points the way forward for the development of this principle in the South African law of contract.
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