oa Fundamina : A Journal of Legal History - From to hardship: aspects of the evolution of the judge's role

Volume 17, Issue 1
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



In a mixed legal system like the South African one, it might be interesting to compare and draw a link between two doctrines dealing with change of circumstances in relation to the performance of a contract, namely :

  • , a well-known expression to designate a legal construction that was present in some ways in Rome, but, more importantly, that has been enlarged by the canonists of the fourteenth century; and
  • "Hardship", a term with various legal consequences depending on whether it is used in the field of international law of contract, European private law projects or in English common law.
These two doctrines have attributed different roles to the judge, based on the relationship between the judge and statutory law, on the one hand, and the judge and the contract, the so-called "statute of the parties", on the other hand.

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