n Tydskrif vir die Suid-Afrikaanse Reg - Revocation of gifts on the ground of ingratitude - from Justinian to LAWSA : notes
|Article Title||Revocation of gifts on the ground of ingratitude - from Justinian to LAWSA : notes|
|© Publisher:||Juta Law Publishing|
|Journal||Tydskrif vir die Suid-Afrikaanse Reg|
|Publication Date||Jan 2011|
|Pages||361 - 372|
|Keyword(s)||University of South Africa|
ISI Social Science
Comparing the two quotations in the title above and reading certain recent judgments (Malaba v Malaba 2005 JOL 15248 (ZH); Fenton v Fenton 2006 JOL 17490 (T)), I wondered if secondary sources, like LAWSA, have actually become primary sources of law in our courts. Elsewhere I also raised concerns about the apparent willingness of the courts to rely on LAWSA as a primary source of law ("Who is accountable to whom? - Hamilton-Browning v Denis Barker Trust" 2002 THRHR 298 303). The extract from Owens, updated by Wunsh and Daniels sv "Donations" VIII LAWSA (The Law of South Africa (2005) par 310) in the heading above differs from the statement of the law in the Codex of Justinian quoted above. In this note I evaluate the historical background of revocations of donations made out of sheer liberality (ie a true donation) on the ground of ingratitude. According to the LAWSA authors of this title the chief ground for revocation of a donation inter vivos is gross ingratitude on the part of the donee. "Ingratitude" in the Codex ("... if the receiver of the donation is not found to be ungrateful" - my translation of the Codex text quoted in the heading above) has become "gross ingratitude" in LAWSA. In this note I aim to establish if there is a substantial difference between the two sources.
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