n Stellenbosch Law Review = Stellenbosch Regstydskrif - The development of a basic approach for the constitutionalisation of our common law of contract

Volume 26, Issue 1
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



In this article, I set out a "basic approach" for the constitutionalisation of our contract law (including the attending common-law methodology) in terms of the foundational constitutional values of freedom, dignity and equality. I then consider the application of this approach more carefully in relation to the narrower situation where one or more distinct substantive rights also find application in a particular case. In this respect, it must be appreciated that substantive rights are more concrete (at least, in their impact) than the values which underpin them. Moreover, the purposes served by the rights themselves may be different - they may for instance, be civil, social and/or economic. Finally, I apply my "basic approach", as outlined in this article, to the right to freedom of trade, occupation and profession (section 22 of the Constitution) in order to illustrate how it can facilitate the constitutionalisation of the relevant substance, form and methodology of our contract law without sacrificing the law's doctrinal coherence or certainty and in the end therefore, without sacrificing the integrity of the common law of contract.

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