n Stellenbosch Law Review = Stellenbosch Regstydskrif - Die belang van en metodologie ten opsigte van die klassifikasie van kontrakte in die Suid-Afrikaanse reg

Volume 15, Issue 2
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



The classification of contracts is relatively unchartered terrain in South African law. The importance of determining a methodology for the classification of contracts, and therefore also this contribution, may well be questioned, since it is possible for the courts to interpret contracts as they find them. It is, however, submitted that a methodology for the classification of contracts has merit, because it will ensure that the consequences a court will attach to a specific type of contract will be determinable with more certainty. Thus legal certainty will be enhanced by the use of such a methodology. It is further submitted that the method to be used must be the classical approach whereby the functional characteristics of a contract is compared with the <I>essentialia</I> of already existing contracts to determine its nature. Where a particular contract does not reflect all the <I>essentialia</I> of any existing type, the classical approach does not give a satisfactory result and it is submitted that in such instances the dominant characteristics of a contract must be taken into account in classifying such a contract.

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