Bibliographie sélective OHADA

The concepts public policy and public interest often obtain an imprecise content as a criterion for contractual justice in South African law. The consequence of this is some degree of legal uncertainty. This is the problem raised in the present dissertation. From the cases and literature the causes of the problem became clearer and it became evident that the correct basis to deal with this problem is the systematisation of this sphere of the law of contract, which also implies the circumspect dealing with concepts. This was confirmed by the examination of a number of foreign legal systems. It appeared moreover that in these systems too, general criteria are used to evaluate contractual justice, namely: in German law the concepts gute Sitten and Treu und Glauben, in Dutch law the concepts goede zeden, openbare orde, as well as redelijkheid en billijkheid (goede trouw) and in English law the concept public policy and possibly in future also the concept good faith. The foreign systems furthermore provided some solutions regarding the practical implementation of the systematisation. The proposed systematisation firstly implies that public policy and public interest should be understood correctly as a general criterion in this sphere, which means that it has a normative character as well as a flexible nature, which necessarily causes some degree of legal uncertainty. It also implies that public policy and public interest - correctly orientated - should be seen as pivotal to one of the requirements for a valid contract, which is traditionally known as the requirement of legality, but which probably should rather be known as the requirement of lawfulness. This requirement should in addition be understood in a broad sense as also relating to the effect of contracts, and consequently to contractual justice, seen as the relative balance between the interests of the parties. The systematisation furthermore includes the understanding that in this sphere a judge has a limited discretion in exercising a law-creating power. The discretion is limited, especially to prevent a judge from reaching a decision on account of a purely subjective opinion. Regarding this limited discretion an established system of guidelines currently does not exist in South African law, but in the present dissertation a step in this direction was made. The gist of these guidelines is that the nature and the context of the relevant contract or contract term should be observed. The individual case should, however, not be over-emphasised, since that may lead to a superabundance of legal uncertainty and to the misuse of public policy and public interest as a defence. Regarding practical application the systematisation includes in short that various facets of public policy and public interest are distinguished, namely legislation and common law, established views and customs (boni mores), and thirdly public policy and public interest as such, concretised by the concept good faith as the underlying principle. It is submitted that the proposed systematisation could contribute to decreasing the imprecise use of the concepts public policy and public interest and concomitant legal uncertainty.

Accepted: 2023-05-04T09:00:40Z https://repository.nwu.ac.za/handle/10394/41220