n Without Prejudice - Whose duty is it anyway? : contract law




South African contract law upholds the concept of contractual autonomy, as well as the maxim . As a result, the courts traditionally adopted a non-interventionist approach and were reluctant to declare an otherwise valid contract unenforceable. However, post 1996, the courts have shown a willingness to intervene in contractual matters where it has been found that the enforcement of a contractual term could compromise the principles of equity and good faith, which underpin our Constitution. But this position has been made uncertain by a recent decision by the Supreme Court of Appeal (SCA).


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