n South African Law Journal - The role of public policy in the law of contract, revisited




There is little doubt that public policy, as a means of judicial control over the enforcement of contractual terms, is, and forever will be, somewhat of an unruly horse that is beyond absolute judicial control. As a standard-orientated concept, which is always context-dependent and subject to change, it simply cannot be applied in a formulaic or ritualistic manner. This is its nature. That this is so, however, is not to say that there are no ways of diminishing the uncertainty that accompanies its application in a contractual setting. Whilst the irremediable absence of a rules-like method to the application of public policy renders this area of law inherently uncertain, this uncertainty is exacerbated by other factors. These factors include the improper conceptualisation of the nature of and test for public policy; the failure to define properly the role of constitutional values in the public policy analysis; and the failure to engage, on a case-by-case basis, substantively and critically with the various policy considerations which give content to public policy. Whilst properly addressing each of these issues will by no means eliminate the uncertainty that accompanies the application of public policy, it will definitely go some way towards bringing this uncertainty within acceptable levels.


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