n South African Law Journal - Lazarus in the Constitutional Court : an exhumation of the excepto doli generalis? : note

Volume 124, Issue 3
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



A landmark moment in the history of South African contract law was the emphatic interment of the exceptio doli generalis by Joubert JA in 1988 (3) SA580 (A). Throughout most of the twentieth century, the exceptio doli generalis had been viewed as an equitable defence that allowed a defendant to resist a claim for performance under a contract when there was something unconscionable about the plaintiff's seeking to enforce the contract (or a clause thereof) in the specific circumstances of that case (see A J Kerr 6 ed (2002) 637ff; P J Aronstam 'Unconscionable contracts: The South African solution?' (1979) 42 THRHR 21; P van Warmelo 1981 202).

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