n Stellenbosch Law Review = Stellenbosch Regstydskrif - Failed synallagmatic contracts : appraisal of the maxim "the party who has control and can insure against the loss should shoulder the risk"

Volume 21, Issue 2
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



The current position in South African law on enrichment situations arising from "failed agreements" is that "if you have received a performance in terms of a contract which subsequently fails for whatever reason, you give it back if you still have it; if you cannot give it back, you are absolved, unless you were culpable in relation to the loss". Daniel Visser, however, challenges this approach and proposes a new one in his recently published book, (2008). This article evaluates both this position and the newly suggested approach and it argues that in cases of failed synallagmatic contracts "the person who was able to take measure to avert the risk or minimise its impact, if it did happen, must shoulder the risk of loss". However, such a determination must consider the nature of the risk, whether "exogenous" or "endogenous", and the attitude of each party towards risk.

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