European Contract Law

European Contract Law:
Scots and South African Perspectives

EDINBURGH STUDIES IN LAW
Series Editor
Elspeth Reid (University of Edinburgh)
Editorial Board
David L Carey Miller (University of Aberdeen)
George Gretton (University of Edinburgh)
Sir Neil MacCormick (University of Edinburgh)
Hector L MacQueen (University of Edinburgh)
Kenneth G C Reid (University of Edinburgh)
Reinhard Zimmermann (Max-Planck-Institute of Comparative Private Law
and Private International Law, Hamburg)
Previous volumes in the series:

Elspeth Reid and David L Carey Miller (eds), A Mixed Legal System in
Transition: TB Smith and the Progress of Scots Law (2005)
EDINBURGH STUDIES IN LAW
V OLUME 2
European Contract Law:

Scots and South African
Perspectives
Edited by Hector L MacQueen
and Reinhard Zimmermann
EDINBURGH UNIVERSITY PRESS

© The Edinburgh Law Review Trust and the Contributors, 2006
Edinburgh University Press Ltd

22 George Square, Edinburgh
Typeset in New Caledonia by

Koinonia, Manchester, and
printed and bound in Great Britain by
Antony Rowe Ltd, Chippenham, Wilts
Antony Rowe Ltd, Chippenham, Wilts
A CIP record for this book is available from the British Library
ISBN 0 7486 2425 2 (hardback)
The right of the contributors

to be identified as authors of this work
has been asserted in accordance with
the Copyright, Designs and Patents Act 1988.
Contents
Preface vii
List of Contributors xii
List of Abbreviations xiii
1 Ius Commune and the Principles of European Contract Law:

Contemporary Renewal of an Old Idea 1
Reinhard Zimmermann
2 Good Faith 43
Hector L MacQueen
3 Offer, Acceptance, and the Moment of Contract Formation 74
Geo Quinot
4 The Battle of Forms 98
Angelo D M Forte
5 Agency 123
Laura Macgregor
6 Threats and Excessive Benefits or Unfair Advantage 151
Jacques du Plessis
7 Interpretation 176
Eric Clive
8 Third-Party Contracts 203
Philip Sutherland
9 Payment 230
Charl Hugo
10 Specific Performance and Special Damages 249
Sieg Eiselen
vi contents
11 Termination for Breach of Contract 280

Tjakie Naudé
12 Assignment 307
Gerhard Lubbe
13 Capitalisation of Interest 331
Max Loubser
Appendix: The Principles of European Contract Law 367

List of Cases 415
Index 430
Preface
This volume set out initially to test the claim that, as combinations of Civil
and Common Law influences, the mixed systems of contract law in Scotland
and South Africa have in some sense anticipated the content of the Principles
of European Contract Law (PECL) concluded and published in 2003 by the
unofficial Commission on European Contract Law presided over by Professor
Ole Lando (Copenhagen). In a way, therefore, the volume was supposed to
build on the foundations laid by a trilogy of historical and comparative studies
on Scots and South African law, culminating in a volume affectionately
dubbed Double Cross, but in reality entitled Mixed Legal Systems in Com-
parative Perspective: Property and Obligations in Scotland and South Africa
(2004). At the Edinburgh conference where the papers were first presented
in December 2004, however, it became clear that the studies could and
should go much further. For example, how far might the Scots and South
African contract laws benefit from reform along the lines proposed by
PECL? And given that PECL appeared likely to become the basis for some
sort of European contract law (see further below), what criticisms might be
made of it in the light of experiences made in Scotland and South Africa? Nor
is PECL the only possible model for a European – or indeed global – contract
law. Account has also to be taken of such projects as the (also unofficial) Code
of Contract Law prepared by the Academy of European Law under the
leadership of Professor Giuseppe Gandolfi (Pavia) and of the Principles of
International Commercial Contracts (PICC) first published by UNIDROIT
in 1994 and issued in a second edition in 2004.
The development and nature of PECL and the other instruments just
mentioned are set out in Reinhard Zimmermann’s opening paper, and
therefore need not be further explained here. But it may also be helpful to
readers to know something of the current official moves towards a European
contract law within the European Union, which lend the critiques of PECL
viii preface
offered in this volume an especial urgency and significance.1

In July 2001 the European Commission issued a Communication to the
Council and the European Parliament on European Contract Law (COM
(2001) 398 final), seeking views on whether problems result from diver-
gences in contract law between member states; whether the proper
functioning of the Internal Market might be hindered by problems in
relation to the conclusion, interpretation and application of cross-border
contracts. The Commission was also interested in whether different national
contract laws discourage or increase the costs of cross-border transactions. If
concrete problems were identified, the Commission also wanted views on
possible solutions, such as:
– leaving it to the market;

– promotion of the development of non-binding contract law principles
such as the Principles of European Contract Law;
– review and improvement of existing EC legislation (the acquis) in the
area to make it more coherent and/or adaptable;
– adoption of a European contract code at EC level.
In February 2003 the Commission issued a further Communication to the
European Parliament and Council entitled A More Coherent European
Contract Law: An Action Plan (COM (2003) 68 final). The Communication
suggested a mix of non-regulatory and regulatory measures in order to solve
the problems identified by its previous consultation, including:
– increasing the coherence of the Community acquis in contract law by

means of what was called a Common Frame of Reference (CFR) for
contract law;
– promoting the elaboration of EU-wide general contract terms;
– examining further whether problems in European contract law
require non-sector-specific solutions such as an optional instrument
on the subject.
A further Communication from the Commission to the European Parliament

and Council, entitled European Contract Law and the revision of the acquis:
the way forward was published in October 2004 (COM (2004) 651 final).
The proposal for the development of a CFR was to be taken forward as a
means of improving the quality and consistency of the acquis in the area of
1 Most of the Commission documents referred to in the following paragraphs can be accessed at
http://europa.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_pract/cont_law/
index_en.htm.
preface ix
contract law. The CFR was seen as a toolbox towards improvement of the
quality and coherence of the acquis and future legislation, as well as its
simplification. “The CFR will provide clear definitions of legal terms,
fundamental principles and coherent model rules of contract law, drawing on
the EC acquis and on best solutions found in Member States’ legal orders”
(para 2.1.1). It would, however, be a non-binding instrument, although the
Commission reserved the right to consult again on this question when elabor-
ating the CFR. The promotion of EU-wide standard terms and conditions is
to be taken forward via a website which would be a platform for the exchange
of information on such terms and conditions. Further, and in parallel with the
development of the CFR, the Commission would continue to investigate the
opportuneness of a non-sectoral-specific optional instrument on European
contract law. The Commission said:
Although it is premature to speculate about the possible outcome of the reflection,
it is important to explain that it is neither the Commission’s intention to propose a
“European civil code” which would harmonise contract laws of Member States,
nor should the reflections be seen as in any way calling into question the current
approaches to promoting free circulation on the basis of flexible and efficient
solutions (para 2.3).
The Commission has now (June 2005) contracted with a number of groups
under the Sixth Framework programme to carry out the research needed for
the preparation and elaboration of the CFR by 2007. The groups involved, to be
known collectively as the CoPECL-Network of Excellence, are the following:
– Study Group on a European Civil Code (which seeks to build on

PECL in many other areas of private law, including specific contracts,
non-voluntary obligations, e-commerce, trusts, and transfer of property);
– Research Group on the Existing EC Private Law (the Acquis Group);
– Project Group on a restatement of European Insurance Contract Law
(Insurance Group);
– Association Henri Capitant with the Société de Législation Comparée
and the Conseil Supérieur du Notariat;
– Common Core of European Private Law Group;
– Research Group on the Economic Assessment of Contract Law
Rules;
– Database Group of the Institute Charles Dumoulin, University of
Paris (which is compiling a database of cases on European contract
law);
– Academy of European Law, Trier (ERA).
x preface
The Network Co-ordinator is Professor Dr Hans Schulte-Nölke of the

University of Bielefeld. Most of the Network groups are university-based
(Edinburgh is among the universities involved). In order therefore to avoid
the reproach of being merely an academic exercise, the work of the groups
will be discussed and criticised in “stakeholder workshops” over the study
period (a process which has indeed already begun). The stakeholders include
representatives of business, consumers and legal practice. The overall aim
will be to adopt a tried and tested CFR by 2009.
To date (June 2005), there have been two major reactions to these
proposals in the United Kingdom. The first of these was the House of Lords
European Union Committee’s 12th Report of Session 2004–05, European
2
Contract Law – the way forward? (HL Paper 95, 5 April 2005) . Having
taken evidence from a number of academic and practising lawyers, the
Committee concluded that the CFR is to be welcomed in principle, and that
in order to ensure its usability, industry, commerce, legal practitioners and
consumers must be closely involved in the preparatory work.
The second significant response was the publication in March 2005 of a
survey by the London law firm Clifford Chance, entitled European Contract
Law: what does business think?.3 Of the 175 businesses asked, 81.7 per cent
would be likely or very likely to use an EU-wide contract law, although 74.3
per cent were against such a law being mandatory, and only 53.7 per cent
believed it achievable in any event. The ability to choose the governing law of
a contract was important to 83.4 per cent of respondents. 65 per cent found
that there were obstacles, including legal differences, to cross-border trade
in Europe, but only 27 per cent were actually deterred from doing such
business as a result.
Of course, the proposals for the development of a European contract law
by the methods being used by the Commission have met with severe
4
criticism on policy and other grounds. But even so it is evident that a
European contract law is nearer to reality of a kind than ever before, and that
policy critiques are not enough. There is also a need for technical and
substantive assessment of the material such as PECL upon which the CFR
will be based. This book seeks to provide just such criticism from the
2 See http://www.publications.parliament.uk/pa/ld200405/ldselect/ldeucom/95/9502.htm#evidence.
3 Accessible at http://www.cliffordchance.com/expertise/publications/details.aspx?FilterName=
@URL&contentitemid=8354).
4 See, e.g., H Muir Watt, “European integration, legal diversity and the conflict of laws” (2005) 9
Edinburgh LR 6; J Smits (ed), The Need for a European Contract Law: Empirical and Legal
Perspectives (2005).
preface xi
perspective of Scots and South African contract lawyers, and it is offered to

the debate without prejudice as to the deeper policy questions. At the same
time it may help to inform Scots and South African lawyers about the
substance of international developments in the field, and suggest ways in
which our still vigorous and vital national laws may continue to be developed
to remain in step with the needs of the day.
We are grateful to our fellow contributors for their prompt and efficient
responses to our requests for the development of the papers which they
presented in Edinburgh in December 2004, and to Elspeth Reid for much
helpful guidance and support in bringing the volume forward to publication.
Hector L MacQueen and

Reinhard Zimmermann
June 2005
List of Contributors
eric clive is a Visiting Professor of Law in the University of Edinburgh.

jacques du plessis is a Professor of Private Law and Roman Law in the
University of Stellenbosch.
a d m forte is Professor of Commercial Law in the University of Aberdeen.
sieg eiselen is Professor of Private Law in the University of South Africa.
charl hugo is Professor of Mercantile Law in the University of Stellen-
bosch, and a pupil member of the Cape Bar.
max loubser is a Professor of Private Law and Roman Law in the Univer-
sity of Stellenbosch.
gerhard lubbe is a Professor of Private Law and Roman Law in the
University of Stellenbosch.
laura macgregor is a Senior Lecturer in Law in the University of
Edinburgh.
hector macqueen is Professor of Private Law in the University of
Edinburgh.
tjakie naudé is Senior Lecturer in Law in the University of Stellenbosch.
geo quinot is a Lecturer in Law in the University of Stellenbosch.
philip sutherland is Professor of Mercantile Law in the University of
Stellenbosch.
reinhard zimmermann is Director of the Max Planck Institute for Foreign
Private and Private International Law, Hamburg, and Professor of Private
Law, Roman Law, and Comparative Law in the University of Regensburg.
List of Abbreviations
Part I: Books
Bankton, Institute
Andrew McDouall, Lord Bankton, An Institute of the Laws of Scotland in
Civil Rights (1751–53), reprinted by the Stair Society, vols 41–43 (1993–95)
Bell, Commentaries
George Joseph Bell, Commentaries on the Law of Scotland and the Principles
of Mercantile Jurisprudence, 7th edn by J McLaren (1870; reprinted 1990)
Bell, Principles
George Joseph Bell, Principles of the Law of Scotland, 10th edn by W
Guthrie (1899, reprinted 1989)
Brownsword et al, Good Faith
R Brownsword, N J Hird and G Howells (eds), Good Faith in Contract:
Concept and Context (1999)
Busch et al, PECL and Dutch Law
D Busch, E Hondius, H van Kooten, H Schelhaas and W Schrama (eds),
Principles of European Contract Law and Dutch Law – A Commentary
(2002)
Christie, Contract
R H Christie, The Law of Contract in South Africa, 4th edn (2001)
De Wet & Van Wyk, Kontraktereg
J C de Wet and A H van Wyk, Kontraktereg en Handelsreg, 5th edn by A H
van Wyk and G F Lubbe, 1992)
Erskine
John Erskine of Carnock, An Institute of the Law of Scotland, 8th edn by J B
Nicholson (1871, reprinted 1989)
xiv list of abbreviations
Forte, Good Faith

A D M Forte (ed), Good Faith in Contract and Property (1999)
Gloag, Contract
W M Gloag, The Law of Contract: a Treatise on the Principles of Contract in
the Law of Scotland, 2nd edn (1929, reprinted 1986)
Grotius
Hugo de Groot, Inleidinge tot de Hollandsche Rechts-geleerdheid (eds F
Dovring, H F W D Fischer, E M Meijers), 2nd edn (1965)
Hume, Lectures
Baron David Hume, Lectures 1786–1822 (ed G C H Paton), Stair Society
vols 5, 13, 15–19 (1939–58)
Hutchison et al, Wille’s Principles
Dale Hutchison, Belinda van Heerden, D P Visser and C G van der Merwe,
Wille’s Principles of South African Law, 8th edn (1991)
Joubert, Contract
D J Joubert, General Principles of the Law of Contract (1987)
Kerr, Agency
A J Kerr, The Law of Agency, 3rd edn (1991)
Kerr, Contract
A J Kerr, The Principles of the Law of Contract, 6th edn (2002)
Kötz & Flessner, European Contract Law
H Kötz and A Flessner, European Contract Law (trans by T Weir), vol I
(1997)
LAWSA
W A Joubert et al (eds), The Law of South Africa (1st and 2nd reissues) with
cumulative supplements
Lubbe & Murray, Contract
G F Lubbe and C F Murray, Farlam & Hathaway Contract – Cases, Materials
and Commentary, 3rd edn (1998)
McBryde, Contract
W W McBryde, The Law of Contract in Scotland, 2nd edn (2001)
MacQueen & Thomson, Contract
Hector L MacQueen and Joe Thomson, Contract Law in Scotland (2000)
PECL
O Lando and H Beale (eds), Principles of European Contract Law, vol 1,
list of abbreviations xv
parts I and II (2000); O Lando, E Clive, A Prüm and R Zimmermann (eds),

Principles of European Contract Law, vol 2, part III (2003).
PICC
Principles of International Commercial Contracts, 2nd edn (2004)
PICC 1994
Principles of International Commercial Contracts, 1st edn (1994)
Reid & Zimmermann, History
Kenneth Reid and Reinhard Zimmermann (eds), A History of Private Law in
Scotland, vols 1 (Introduction and Property) and 2 (Obligations) (2000)
Schmoeckel et al, Historisch-kritisher Kommentar
M Schmoeckel, J Rückert and R Zimmermann (eds), Historisch-kritishcer
Kommentar zum BGB, vol I (2003)
Scott, Cession
S Scott, Law of Cession, 2nd edn (1991)
Smith, Studies
T B Smith, Studies Critical and Comparative (1962)
Smith, Short Commentary
T B Smith, A Short Commentary on the Law of Scotland (1962)
Stair, Institutions
James Dalrymple, 1st Viscount Stair, Institutions of the Law of Scotland, 6th
edn by D M Walker (1981)
SME
T B Smith et al (eds), The Laws of Scotland: Stair Memorial Encyclopaedia
(25 vols, 1987–96) with cumulative supplements and reissues
Treitel, Contract
G H Treitel, The Law of Contract, 11th edn (2000)
Treitel, Remedies
G H Treitel, Remedies for Breach of Contract: A Comparative Account
(1988)
Van der Merwe et al, Contract
S W J van der Merwe, L F van Huyssteen, M F B Reinecke and G F Lubbe,
Contract: General Principles, 2nd edn (2003)
Voet
Johannes Voet, Commentarius ad Pandectas (Hagae-Comitum, 1707)
xvi list of abbreviations
Walker, Contract
D M Walker, The Law of Contracts and Related Obligations in Scotland, 3rd
edn (1995)
Zimmermann, Comparative Foundations
Reinhard Zimmermann, Comparative Foundations of Set-off and
Prescription (2002)
Zimmermann, Obligations
Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the
Civilian Tradition (1990; paperback edition, 1996)
Zimmermann, Roman Law
Reinhard Zimmermann, Roman Law, Contemporary Law, European Law:
The Civilian Tradition Today (2001)
Zimmermann & Visser, Southern Cross
Reinhard Zimmermann and Daniel Visser (eds), Southern Cross: Civil Law
and Common Law in South Africa (1996)
Zimmermann, Visser & Reid, Mixed Legal Systems
Reinhard Zimmermann, Daniel Visser and Kenneth Reid (eds), Mixed Legal
Systems in Comparative Perspective: Property and Obligations in Scotland
and South Africa (2004)
Zimmermann & Whittaker, Good Faith
Reinhard Zimmermann and Simon Whittaker (eds), Good Faith in European
Contract Law (2000)
Zweigert & Kötz, Comparative Law
K. Zweigert and H. Kötz, Introduction to Comparative Law, 3rd edn, transl T
Weir (1998)
Part II: Other Abbreviations

A Appellate Division
ABGB Allgemeines Bürgerliches Gesetzbuch
AC Law Reports, Appeal Cases
ACJ Acting Chief Justice
AD Appellate Division; South African Law Reports, Appellate
Division
Ad & El Adolphus & Ellis’s Reports, King’s Bench and Queen’s
Bench
AJ Acting Judge
list of abbreviations xvii
AJA Acting Judge of Appeal

AJCL American Journal of Comparative Law
AJP Acting Judge President
Alex Alexander Severus
All ER All England Reports
All SA All South African Law Reports
App Cas Law Reports, Appeal Cases, House of Lords
APS Act(s) of the Parliament of Scotland (until 1707)
ASP Act of the Scottish Parliament (from 1999)
B&C Barnwall & Cresswell’s King’s Bench Reports
B&S Best & Smith’ Reports, Queen’s Bench
BCLC Butterworth’s Company Law Cases
BCLR Butterworth’s Constitutional Law Reports
Bell App S S Bell’s Scotch Appeals, House of Lords
BGB Bürgerliches Gesetzbuch
Bing Bingham’s Reports, Common Pleas
Bligh Bligh’s Reports, House of Lords
BMLR Butterworth’s Medico-Legal Reports
Bpk Beperk (= Limited)
BS Brown’s Supplement, Court of Session reports
Buch Buchanan’s Reports, Cape Supreme Court
Buch AC Buchanan’s Appeal Cases, Cape Appeal Court
BW Burgerlijk Wetboek
C Cape Provincial Division
c(c) chapter(s) (legislation)
C Codex Iustiniani
CA Court of Appeal
CA Mass Court of Appeal, Massachusetts
Cambridge LJ Cambridge Law Journal
Camp Campbell’s Nisi Prius Reports
CAQ Cour d’Appel, Québec
Cardozo LR Cardozo Law Review
CB Common Bench Reports
CBNS Common Bench Reports by Manning, Granger &
Scott, New Series
CC Constitutional Court, South Africa
Ch Law Reports, Chancery Division
Ch D Law Reports, Chancery Division
xviii list of abbreviations
CILSA The Comparative and International Law Journal of

Southern Africa
CISG Convention on the International Sale of Goods 1980
(Vienna Convention)
Civ Arrêt de la Chambre civile de la Cour de Cassation
CJ Chief Justice
Ck South African Law Reports, Ciskei High Court
CLD Commercial Law Reports (formerly Commercial Law
Digest)
CLP Current Legal Problems
CLR Commonwealth Law Reports (Australia)
Co Company
CP Consultation Paper
CPD Law Reports, Common Pleas Division; Cape Provincial
Division; South African Law Reports, Cape Provincial
Division
CSOH Court of Session, Outer House
D Dunlop’s Session Cases; Durban and Coastal Local
Division
D Justinian’s Digest
D & CLD Durban and Coast Local Division
D(HL) House of Lords Cases in Dunlop’s Session Cases
DA Dalloz, Recueil Analytique de Jurisprudence et de
Legislation
DC Ill District Court, Illinois
DC Pa District Court, Pennsylvania
DP Discussion Paper
E Eastern Cape Local Division
EC European Communities
EDC Eastern District Court Reports, Cape of Good Hope
Edinburgh LR Edinburgh Law Review
EDL Eastern District Local Division Reports, Cape of Good
Hope
EDLD Eastern Districts Local Division
Edms Eiendoms (=Proprietary)
ER English Reports
ERPL European Review of Private Law
EWCA Civ Court of Appeal, Civil Division (England and Wales)
EWHC High Court (England and Wales)
list of abbreviations xix
Ex Law Reports, Exchequer

Ex D Law Reports, Exchequer Division
F Fraser’s Session Cases
F Supp Federal Supplement
F(HL) House of Lords Cases in Fraser’s Session Cases
FC Faculty Collection, Court of Session; Federal Supreme
Court of Southern Rhodesia
Foord Foord’s Reports, Cape Supreme Court
GWD Green’s Weekly Digest
Harvard LR Harvard Law Review
HC House of Commons
HCG Reports of the High Court of Griqualand
HL House of Lords
HLC Clark’s House of Lords Cases
HR Hoge Raad
Hume Hume’s Decisions, Court of Session
Houston LR Houston Law Review
ICLQ International and Comparative Law Quarterly
ICR Industrial Cases Reports
IH Inner House
Inc Incorporated
Inst Justinian’s Institutes
Irish Jur Irish Jurist
IRLR Industrial Relations Law Reports
Israel LR Israel Law Review
J Judge
JA Judge of Appeal
JBL Journal of Business Law
JE Jurisprudence express
JLSS Journal of the Law Society of Scotland
JP Judge President
JR Juridical Review
KB Law Reports, King’s Bench Division
LA Lord Advocate
La LR Louisiana Law Review
LAC Labour Appeal Court
Law Com Law Commission
LC Lord Chancellor
LCJ Lord Chief Justice
xx list of abbreviations
LJ Lord Justice
LJC Lord Justice Clerk
LJCP Law Journal Reports, New Series, Common Pleas
LJEx Law Journal Reports, Exchequer
Lloyd’s Rep Lloyd’s Law Reports
LMCLQ Lloyd’s Maritime and Commercial Law Quarterly
LQR Law Quarterly Review
LR CP Law Reports, Common Pleas
LR QB Law Reports, Queen’s Bench
LT Law Times Reports
M Macpherson’s Session Cases
Macq Macqueen’s House of Lords Reports
McGill LJ McGill Law Journal
Memo Memorandum
Menz Menzies Reports, Cape Supreme Court
Mer Merivale’s Reports, Chancery
Michigan LR Michigan Law Review
Mo Missouri Supreme Court Reports
Mo App Missouri Appeal Reports
Modern LR Modern Law Review
Mor Morison’s Dictionary of Decisions, Court of Session
MR Master of the Rolls
N Natal Provincial Division
NC Northern Cape Division
NJ Nederlandse Jurisprudentie
NLR Natal Law Reports
NO nomine officii
NPD South African Law Reports, Natal Provincial Division
NY New York Reports
NZLR New Zealand Law Reports
O Orange Free State Provincial Division
OH Outer House
OJ Official Journal of the European Communities
Ont HCJ High Court of Justice, Ontario
OPD South African Law Reports, Orange Free State Provincial
Division
OR Obligationenrecht (Switzerland)
OR (2d) Ontario Reports, Second Series (Canada) 1974–1991
Oxford JLS Oxford Journal of Legal Studies
list of abbreviations xxi
PD Law Reports, Probate, Divorce and Admiralty Division

PECL Principles of European Contract Law
PICC Principles of International Commercial Contracts
plc Public limited company
pr principium
Pty Proprietary
Pvt Private (Company)
QBD Queen’s Bench Division
R Rettie’s Session Cases; High Court of Rhodesia
R(HL) House of Lords cases in Rettie’s Session Cases
RA High Court of Rhodesia, Appellate Division
RabelsZ Rabels Zeitschrift für ausländisches und internationales
Privatrecht
RAD Rhodesia, Appellate Division
reg(s) regulation(s)
rev revised
RLR Restitution Law Review
Rob Robinson’s Scotch Appeal Cases
S P Shaw’s Session Cases (NE indicates New Edition)
s Section
SA South African Law Reports
SA Merc LJ South African Mercantile Law Journal
SAJHR South African Journal on Human Rights
SALJ South African Law Journal
SALR Butterworth’s South African Law Review
SAR Reports of the High Court of the South African Republic
SC Reports of the Cape Supreme Court; Session Cases
SC (HL) House of Lords cases in Session Cases
SCA Supreme Court of Appeal
SCLR Scottish Civil Law Reports
Scot Law Com Scottish Law Commission
SCR Canada Law Reports, Supreme Court
SDNY Southern District of New York
SE/SEC/SECLD South Eastern Cape Local Division
Searle Searle’s Reports, Cape Supreme Court
SI Statutory Instrument
SLPQ Scottish Law & Practice Quarterly
SLR Scottish Law Reporter
SLT Scots Law Times
xxii list of abbreviations
SLT (Lands Tr) Lands Tribunal Reports in Scots Law Times

SLT (N) Notes of Recent Decisions in Scots Law Times
SLT (News) News Section in Scots Law Times
SLT (Notes) Notes of Recent Decisions in Scots Law Times
SLT (Sh Ct) Sheriff Court Reports in Scots Law Times
So Southern Reporter
SPCB Scottish Parliamentary Corporate Body
SR High Court of Southern Rhodesia
Stellenbosch LR Stellenbosch Law Review
sv sub voce
SW South Western Reporter
SWA South African Law Reports, South West Africa Division
T Transvaal Provincial Division
t/a trading as
TH Reports of the Witwatersrand High Court
THRHR Tydskrif vir Hedendaagse Romeins-Hollandse Reg
Tk South African Law Reports, Transkei High Court
TPD South African Law Reports, Transvaal Provincial Division
TR Tijdschrift voor Rechtsgeschiedenis
TS Reports of the Transvaal Supreme Court
TSAR Tydskrif vir die Suid-Afrikaanse Reg
Tulane LR Tulane Law Review
UCC Uniform Commercial Code
UKHL United Kingdom, House of Lords
Ulp Ulpian
US Dig United States Digest
W Witwatersrand Local Division
W& S Wilson and Shaw’s House of Lords Cases
WLD South African Law Reports, Witwatersrand Local
Division
WLR Weekly Law Reports
Yale LJ Yale Law Journal
ZEuP Zeitschrift für Europäisches Privatrecht
ZfRV Zeitschrift für Rechtsvergleichung
ZH/ZHC Zimbabwe High Court
ZSS (RA) Zeitschrift der Savigny-Stiftung für Rechtsgeschichte,
Romanistische Abteilung
1 Ius Commune and the
Principles of European
Contract Law:
Contemporary Renewal
of an Old Idea*
Reinhard Zimmermann
A. INTRODUCTION
B. THE PRINCIPLES OF EUROPEAN CONTRACT LAW
(1) Scope and origin
(2) Essential characteristics
(3) Style and structure of publication
(4) Rules or principles?
(5) The Unidroit Principles
C. THE OLD IUS COMMUNE
(1) A European legal tradition
(2) Ius commune and codification
D. THE PRINCIPLES AS A CONTEMPORARY MANIFESTATION OF
THE EUROPEAN LEGAL TRADITION
(1) Common core
(a) Elements of contract law
(b) Variations of a theme
(c) Regulae iuris
(d) Good faith
(2) Convergence and tradition
(a) Stipulatio alteri
(b) Direct representation
* This is the text on which my opening lecture of the conference “Principles of European Contract
Law: Another Mixed Legal System” on 2 Dec 2004 in Edinburgh was based. The manuscript, in
turn, is based on an essay on the Principles of European Contract Law which is to be published,
in late 2005, as part of a volume in honour of Hein Kötz. A German version has appeared in Dirk
Heirbaut, Georges Martyn (eds), Napoleons nalatenschap: Tweehonderd jaar Burgerlijk Wetboek
in Belgie (2005), pp. 377 ff.
1
2 european contract law
(c) Change of circumstances

(d) Determination of price
(e) Conventional penalties
(f) Set-off
(g) Other examples
(3) International legal development
(4) Uniform law
(a) CISG and the European legal tradition
(b) Breach of contract
(c) Formation of contracts
(d) Other international Conventions
(5) “Progressive development”
(a) Once again: set-off
(b) The unilateral promise
(c) Undue influence Civilian style
E. THE PRINCIPLES AND THE RE-EUROPEANISATION OF
PRIVATE LAW
(1) A basic background text shaping national legal developments imperio rationis
(2) Legislation
(3) Courts of law
(4) Legal scholarship
(5) Autonomous convergence
(6) Legal training
F. CONCLUSION
A. INTRODUCTION
This paper will focus on a key document within the process of the Euro-
peanisation of private law legal scholarship, the Principles of European
Contract Law. I would like to demonstrate that these Principles can be seen
as a contemporary manifestation of a genuinely European tradition – a
tradition which used to be labelled ius commune. And I would like to argue
that they can serve as a catalyst for a Europeanisation of private law “from
within” and “from below” (as opposed to European legal unification by
means of legislation, i.e. unification “from outside” and “from above”). In a
way, therefore, the Principles mark the contours of a new European ius com-
mune and can fulfil a function resembling that of its historical predecessor.
Before these arguments can be developed a few words have to be said about
the Principles of European Contract Law and about the old ius commune. It
IUS COMMUNE and pecl 3
should also be noted, at the outset, that this paper does not deal with private
law in general but merely with one of its constituent elements: the law of
contract. One reason for this is immediately obvious: the Principles of
European Contract Law constitute the most advanced and internationally
most widely noted academic project aiming at the Europeanisation of private
law.1 Similar sets of Principles for other areas of the law are only just
2
beginning to be published. This is hardly accidental. For, on the one hand,
the law relating to commercial contracts has often tended to be the pace-
3
maker for legal harmonisation. On the other hand, most of the basic concepts
and evaluations informing the law of contract have not been deeply affected
by legal developments under the auspices of the age of legal nationalism. The
differences between the national legal systems are largely on the level of
4 5
technical detail. In other areas of private law, the situation is more complex.
1 See, e.g., R Zimmermann, “Konturen eines Europäischen Vertragsrechts” (1995) Juristenzeitung

477; H Beale, “The Principles of European Contract Law and Harmonization of the Laws of
Contract”, in Festshrift til Ole Lando (1997), 21; J Basedow (ed), Europäische Vertragsrechts-
vereinheitlichung und deutsches Recht (2000); E Hondius, F Nieper et al, “Principles of
European Contract Law” (2000) 17 Nederlands Tijdschrift voor Burgerlijk Recht 428;
M W Hesselink & G J P de Vries, Principles of European Contract Law (2001); S Mazzamuto,
C Castronovo et al, Principi di diritto europeo dei contratti: spunti dell’edizione italiana, Europa
e diritto privato (2002), 847; cf also the bibliography in W Ernst & R Zimmermann (eds),
Zivilrechtswissenschaft und Schuldrechtsreform (2001), 739.
2 A European Group on Tort Law, based in Vienna, has published a set of Principles of European
Tort Law in 2004; see (2004) 12 ZEuP 427 ff; on which see H Koziol, “Die ‘Principles of European
Tort Law’ der ‘European Group on Tort Law’” (2004) 12 ZEuP 234 ff; R Zimmermann,
“Principles of European Contract Law and Principles of European Tort Law: Comparison and
Points of Contact” in H Koziol & B C Steininger (eds), European Tort Law 2003 (2004), 2 ff. For
first contours of the tort/delict regime of the Study Group on a European Civil Code, see
J W G Blackie, “Tort/Delict in the Work of the European Civil Code Project of the Study Group
on a European Civil Code”, in R Zimmermann (ed), Grundstrukturen eines Europäischen
Deliktsrechts (2003), 133.
3 See, e.g., for nineteenth-century German law, B Dölemeyer, in H Coing (ed), Handbuch der
Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, vol III/2 (1982), 1421;
A J Kanning, Unifying Commercial Laws of Nations-States (2003), 46.
4 N Jansen, Binnenmarkt, Privatrecht und europäische Identität (2004), 23.
5 This even applies to closely related areas such as the law of delict. For many centuries, it had
developed along similar lines. It constituted a usus modernus of Aquilian liability which was
reconceptualised under the influence of Natural law theory. In spite of many differences in detail
it retained an essentially European character. Unlike the law of contract, however, even in the
eighteenth and nineteenth centuries the modernised version of Roman law was no longer really
modern. For in its basic structure it was still essentially geared towards the sanctioning of private
wrongs rather than the reasonable allocation of losses (see N Jansen, Die Struktur des
Haftungsrechts (2003), §§ 4–6). This was a problem which European legal systems only started to
grapple with in the course of the nineteenth century and at a time when the first wave of
codifications had contributed to a national isolation of the legal discourse. As a result, the
European legal landscape became considerably more patchy in this field than in that of contract
law: see Jansen, Binnenmarkt, Privatrecht und europäische Identität, 33.
B. THE PRINCIPLES OF EUROPEAN CONTRACT LAW
(1) Scope and origin

The Principles of European Contract Law have been prepared by a Com-
6
mission on European Contract Law. This Commission – widely known as
“Lando-Commission” – did not have any official status. It was based on a
private initiative and consisted of (predominantly) academics from all mem-
ber states of the European Union. The growth of the Commission paralleled
that of the EU. In the end it consisted of twenty-three members; three of
them came from Germany, two each from France, Italy, England and
7 8
Scotland. The Principles have been prepared in three stages. Part I
9
appeared in 1995, after thirteen years of deliberation. Essentially, it deals
with the modalities of performance, non-performance, remedies for non-
performance, and a number of general questions such as application, general
duties of behaviour in the course of a contractual relationship, and termin-
ology. Work on Part II, which covers the formation of contracts, authority of
agents, validity (including vices of consent but excluding illegality and im-
morality), interpretation, and contents and effects (including contracts in
favour of a third party), lasted from 1992–1999. Part II has not been published
separately, but was immediately integrated with a slightly redrafted version
10 11
of Part I. In 2003 a third, and final, part appeared. It contains rules on
plurality of parties, assignment of claims, substitution of new debtor and
transfer of contract, set-off, prescription, illegality, conditions and capitalisa-
tion of interest. Part III was prepared between 1997 and 2002; unlike Part II,
it has not been integrated with the existing set of Principles but has been
published separately, for the time being.
6 O Lando & H Beale (eds), Principles of European Contract Law, Parts I and II (2000); O Lando,
E Clive, A Prüm & R Zimmermann (eds), Principles of European Contract Law, Part III (2003)
(PECL).
7 See the list in PECL, Part III, xiii–xiv.
8 This way of proceeding has left its traces in the Principles. Thus, for instance, they contain three
different regimes concerning the restitution of benefits after failure of contracts; see
R Zimmermann, “Restitutio in integrum: Die Rückabwicklung fehlgeschlagener Verträge nach
den Principles of European Contract Law, den Unidroit Principles und dem Avant-projet eines
Code Européen des Contrats”, in Festschrift für Ernst A Kramer (2004), 735 ff.
9 PECL, Part I (1995).
10 Lando & Beale (note 6).
11 Lando et al (note 6).
(2) Essential characteristics

Essential characteristics of the Principles of European Contract Law become
apparent by comparison with another draft, also published in the name of a
private group of European academics and also covering the field of contract
law: the Avant-projet for a European Contract Code that has been published
in the name of an Accademia dei Giusprivatisti Europei.12 Very largely, the
Avant-projet is the work of one man: Giuseppe Gandolfi, described on the
title of the publication with too much modesty as “coordinator”. The Academy
did not have much more than a consultative function: it gave suggestions,
commented on preliminary drafts and met occasionally in plenary sessions as
well as in national sub-groups. But its members do not appear to have been
involved in the actual drafting of the rules. With the Principles of European
Contract Law matters were completely different. They are based on a joint
effort. Of course, one or two “reporters” were responsible for the individual
chapters. They had the task of preparing comparative position papers and
draft articles and commentaries; and obviously these reporters, by virtue of
their authority, competence, personality, and power of persuasion, have
managed to mould “their” chapters to a greater or lesser extent. However, a
number of different members of the Commission served as reporters. Also,
the position papers and successive drafts had to be presented to the
Commission as well as to a “Drafting Group” and were discussed, criticised,
refined and referred back to the reporter several times by both bodies; finally
they were passed in two “readings” by the Commission and subsequently
checked again by another body, the Editing Group.
The Avant-projet takes its cue from two models. These models are the
Italian Codice Civile (since it combines elements of French and German
13
law) and a Contract Code drawn up on behalf of the English Law Com-
mission at the end of the 1960s (which, however, has neither been imple-
14
mented nor even published in England). The draftsmen of the Principles of
European Contract Law, on the other hand, have made every effort not to
12 Code Européen des Contrats, edited on behalf on the Accademia dei Giusprivatisti by G Gandolfi
(2000); on which see H J Sonnenberger, “Der Entwurf eines Europäischen Vertragsgesetzbuchs
der Akademie Europäischer Privatrechtswissenschaftler – ein Meilenstein” (2001) Recht der
internationalen Wirtschaft 409; F Sturm, “Der Entwurf eines Europäischen Vertragsgesetz-
buchs” (2001) Juristenzeitung 1097; R Zimmermann, “Der ‘Codice Gandolfi’ als Modell eines
einheitlichen Vertragsrechts für Europa?”, in Festschrift für Erik Jayme (2004), 1401 ff.
13 See, e.g., for the law relating to breach of contract, C Resch, Das italienische Privatrecht im
Spannungsfeld von Code Civil und BGB (2001).
14 H McGregor, Contract Code drawn up on behalf of the English Law Commission (1993)
(published by Giuffré, Milano).
base their work on any individual national legal system. Their approach was
more comparative in nature. They have attempted, as far as possible, to
identify the common core of the contract law of all the EU member states
and to create a workable system on that basis. Thus, in a way, they aimed at a
restatement of European contract law.15 At the same time, however, they
realised that they were confronted with a more creative task than the
draftsmen of the American Restatements. Divergences had to be resolved on
the basis of a comparative evaluation of the experiences gathered in the
national legal systems, by assessing and analysing European and international
trends of legal development, or by employing other rational criteria.
(3) Style and structure of publication

The Principles are also inspired by the Restatements of American Law as far
as style and structure of their publication are concerned. Each volume
contains the text of the Articles which the Commission has agreed upon. In
addition, for every Article there is a commentary (including illustrations) and
comparative notes; the latter inform the reader about the pertinent legal
rules applicable in the EU member states but also take account of other
sources of law, such as international Conventions. The publication of the
Avant-projet, on the other hand, has a section entitled “rapports du
coordinateur” which provides an account of the rules contained in the Codice
Civile and the Contract Code, a survey of the solutions found in other
European codifications, and a summary of the comments by the members of
the Academy. The motivation for the individual rules contained in the Avant-
projet is comparatively sparse. A notable feature of the Avant-projet is that it
is published in French. The Articles contained in the Principles of European
Contract Law have immediately been published in a French and an English
version, even though English has otherwise been the language of publication.
In the course of the deliberations of the Commission on European Contract
Law great emphasis was placed on the possibility of expressing every term
and concept used in the Principles in both French and English; the
Commission was thus constantly aware of the danger of using a terminology
indelibly shaped by the peculiarities of individual legal systems.
(4) Rules or principles?

There is one other difference between the Avant-projet and the Principles
which is, however, much less marked than may be thought at first glance. The
15 Lando & Beale (note 6), xxvi.
Avant-projet contains a set of rules which is designed to be implemented as a

European Contract Code. The Commission on European Contract Law
originally professed to do something else: they set out to draft “Principles” of
European Contract Law. This can only mean that they did not aim at
preparing a system of specific rules which might immediately be applied by
courts of law.16 Accordingly, the draftsmen of the Principles merely regard
their work as a “first step” towards a future European Code of Contract
17
Law. At the same time, however, it must be acknowledged that in a whole
variety of Chapters they have gone much further and have drafted sets of
rules, rather than principles, which reach a level of specificity comparable to
that of any national codification. This is true, in particular, of a number of
Chapters of Part III.
(5) The Unidroit Principles

Internationally, the Principles of European Contract Law compete with the
18
Principles of International Commercial Contracts of Unidroit. Both works
are comparable in many respects. Thus, in particular, they have been pre-
19
pared in a similar manner, they pursue similar aims, and they have been
drafted in a similar style. Like the Lando Commission the members of the
working group of Unidroit have chosen the label “Principles” even though it
does not quite correspond to what they have in fact done. In both cases the
text of the Articles is accompanied by comments (though the draftsmen of
the Unidroit Principles have refrained from adding comparative notes).
There are two major differences in that (i) Unidroit pursues the aim of a
global rather than European harmonisation of contract law, and (ii) the
Unidroit project specifically deals with international commercial contracts
while the Lando Commission has formulated principles of general contract
law. In view of this it may appear to be surprising that the individual solutions
16 Rules, in the terminology widely used in methodological writing, set out legal consequences that
follow when their conditions have been met. Principles are general standards that are to be
observed because it is just, or fair, to do so. A principle does not necessitate a particular decision,
a rule does. Principles have a relative weight which has to be taken into account when they
intersect; one rule, on the other hand, cannot supersede another by virtue of its greater relative
weight; see, R Dworkin, Taking Rights Seriously (1977), 22.
17 Lando & Beale (note 6), xxiii.
18 Unidroit Principles of International Contracts (1994); on which see M J Bonell, An International
Restatement of Contract Law, 2nd edn (1997); E A Kramer, “Die Gültigkeit der Verträge nach
den Principles of International Commercial Contracts” (1999) 7 ZEuP 209; J Basedow, “Die
Unidroit-Prinzipien der internationalen Handelsverträge und das deutsche Recht”, in
Gedächtnisschrift für Alexander Lüderitz (2000), 1.
19 On the aims pursued by the Principles of European Contract Law, see Lando & Beale (note 6), xxi.
proposed by both sets of Principles do not very much differ from each other;
in a number of areas they are virtually identical.20 The dominance of
European legal thinking even outside Europe may provide an explanation, as
far as the first of the points mentioned above is concerned. As for (ii) it may
perhaps be said that what is regarded as fair and reasonable for commercial
contracts can very largely also be regarded as fair and reasonable for consumer
contracts and vice versa. This confirms an observation on the development of
modern sales law: the provisions in the Consumer Sales Directive 1999/44/
21
EC, particularly those concerning the concept of conformity and the reme-
dies in case of non-conformity, very largely mirror the rules contained in the
UN Convention on the International Sale of Goods, even though the latter
22
instrument specifically excludes consumer sales from its range of application.
The correspondence between these two international instruments will
significantly contribute to the emergence of a common framework of
23
reference for the discussion and development of the law of sale in Europe.
The same can be said, on the basis of a comparison between the Unidroit- and
the Lando-Principles, for many central areas of the general law of contract.
C. THE OLD IUS COMMUNE

(1) A European legal tradition
The ius commune, the central point of reference for this paper, was the product
of a dramatic and far-reaching cultural upheaval: the so-called Renaissance of
the twelfth century.24 First in Bologna, then also at other universities founded
20 See, for the topics dealt with in Part I of the PECL, R Zimmermann, “Konturen eines Euro-
päischen Vertragsrechts” (1995) Juristenzeitung 477; generally, see A Hartkamp, “Principles of
Contract Law”, in A Hartkamp & M Hesselink et al (eds), Towards a European Civil Code,
3rd edn (2004) (henceforth Hartkamp & Hesselink, Towards a European Civil Code), 125 ff.
21 Easily accessible now in O Radley-Gardner, H Beale, R Zimmermann & R Schulze (eds), Funda-
mental Texts on European Private Law (2003) (henceforth Radley-Gardner et al, Fundamental
Texts), 107.
22 Article 2 a) CISG. See S Grundmann, in M C Bianca & S Grundmann (eds), EU Sales Directive:
Commentary (2002) (henceforth Bianca & Grundmann, EU Sales Directive), Introduction, nn 6,
22 ff.
23 See, most recently, the Principles of European Sales Law, the first contours of which are pre-
sented by V Heutger, “Konturen des Kaufrechtskonzeptes der Study Group on a European Civil
Code – Ein Werkstattbericht” (2003) 11 ERPL 155.
24 On which see H J Berman, Law and Revolution: The Formation of the Western Legal Tradition
(1983); E Cortese, Il Rinascimento giuridico mediavale (1992); generally on the ius commune see
H Coing, Die ursprüngliche Einheit der europäischen Rechtswissenschaft (1968) (henceforth
Coing, Einheit); H Coing, Europäische Grundlagen des modernen Privatrechts (1986); M Bellomo,
The Common Legal Past of Europe 1000–1800 (1995), 55; R C van Caenegem, European Law in
the Past and the Future (2002), 13 ff, 24 ff.
on the same model, lawyers began systematically to penetrate the most

important body of the Roman sources, the Digest (which had only recently
been rediscovered) and to make it intellectually accessible. This was neces-
sary, above all, because the Digest is not a systematically-structured piece of
legislation or a textbook in the modern sense of the word, but a compilation
of fragments from classical Roman legal writings, put together by Justinian in
the sixth century. These writings themselves were full of controversy;
furthermore, they originated from different stages of legal development.
Nonetheless, the concepts, legal rules and maxims, systematic discoveries
and models of argumentation from Roman law proved superior to the con-
temporary customary laws. Thus, the rationalisation of the law meant, to a
significant degree, its Romanisation (and vice versa); and over the following
centuries Roman law, as it had been moulded by Justinian and turned into a
“legal science” (Rechtswissenschaft) by the lawyers of Bologna, conquered
25
Europe. This was the “reception” of Roman law. Three characteristic aspects
may be emphasised.
The first of them is the truly European character of the tradition that was
thus founded. Up until the time of the so-called usus modernus pandectarum
in the seventeenth and eighteenth centuries, the whole of educated Europe
formed a cultural unit; and law was a constituent part of that European
culture.26 This meant, for instance, that legal academics could receive their
education in one country and accept a chair in another; that students were
able to embark on a peregrinatio academica that could take them to a Dutch
or French university, just as well as to a university in any of the many terri-
tories belonging to the Holy Roman Empire; and that the same textbooks and
commentaries could be used in Alcala and Halle, in Orléans and Pavia, in
27
Leiden, Oxford and Aberdeen.
Secondly, the ius commune was distinguished by its inherent flexibility and
capability of development. It thus became the basis of a European legal tradi-
tion. It was applied in practice and continued to be reinterpreted by successive
25 The standard account is by F Wieacker, Privatrechtsgeschichte der Neuzeit, 2nd edn (1967), 45 ff,
97 ff (trans by T Weir, A History of Private Law in Europe (1995)). For the significance of Roman
law for European legal culture, see P Koschaker, Europa und das römische Recht, 4th edn (1966);
R Zimmermann, “Europa und das römische Recht” (2002) 202 Archiv für die civilistische Praxis
243 ff. For an analysis of early modern German court practice, see P Oestmann, Rechtsvielfalt vor
Gericht (2002).
26 This is the point of departure for H Coing’s opus magnum, Europäisches Privatrecht, vol I (1985).
27 See, specifically for Roman-Dutch law, R Zimmermann, “Roman-Dutch Jurisprudence and its
Contribution to European Private Law” (1992) 66 Tulane LR 1715; generally, see Coing, Einheit
(note 24), 160 ff.
generations of jurists. In the process it was subject to a process of constant

change and adaptation. It absorbed elements of Canon law and medieval
moral theology, of mercantile custom and Natural law theory.28 Moreover, it
interacted with the local, regional and territorial laws applicable within a
given area, and it took account of the requirements and value systems of
contemporary society. Thus, the Roman law applied in early modern Europe
was no longer the Roman law of antiquity; it was “Heutiges Römisches Recht”,
29
or an “usus modernus pandectarum”. In Holland it was dubbed Roman-
Dutch law, in Friesland Roman-Frisian law and in Saxony ius Romanum
Saxonicum. Many individual legal problems were solved differently by
different lawyers at different times and in different parts of Europe. But
these differences, by and large, were variations of a common theme, because
the development of the law occurred within an established framework of sources
and methods, of concepts, rules and arguments. It was a tradition marked as
30
much by a considerable diversity as by a fundamental intellectual unity.
(2) Ius commune and codification

And finally: the ius commune constitutes a tradition which still informs our
31
modern national legal systems. This is not what many twentieth-century
lawyers tended to think. “I simply do not believe that contemporary law has
really grown from the old law, but I regard it as something new, created by the
need of the present day and the sovereign will of the modern legislature”, as
an early twentieth-century German textbook writer expressed a widely held
28 R Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today
(2001) (henceforth Zimmermann, Roman Law), 158 ff.
29 See F C von Savigny, System des heutigen Römischen Rechts, eight vols (1840–1849); S Stryk,
Specimen usus moderni pandectarum (first published between 1690 and 1712).
30 The theme is developed more fully in R Zimmermann, “The Civil Law in European Codes”, in
D L Carey Miller & R Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen
Quincentenary Essays (1997), 259 ff; and see, most recently, van Caenegem (note 24), passim
(the subtitle of his book is, characteristically, Unity and Diversity over Two Millennia).
31 See, e.g., R Knütel, “Römisches Recht und deutsches Bürgerliches Recht”, in W Ludwig (ed),
Die Antike in der europäischen Gegenwart (1993), 43; D Johnston, “The Renewal of the Old”
(1997) 56 Cambridge LJ 80; A Flessner, “Die Rechtsvergleichung als Kundin der Rechts-
geschichte” (1999) 7 ZEuP 513; E Bucher, “Rechtsüberlieferung und heutiges Recht” (2000) 8
ZEuP 394; E Picker, “Rechtsdogmatik und Rechtsgeschichte” (2001) 201 Archiv für die
civilistische Praxis 763; J Gordley, “Why Look Backward” (2002) 50 American Journal of
Comparative Law 657; A Bürge, “Das römische Recht als Grundlage für das Zivilrecht im
künftigen Europa”, in F Ranieri (ed), Die Europäisierung der Rechtswissenschaft (2002), 19;
R Zimmermann, “Civil Code and Civil Law” (1994/5) 1 Columbia Journal of European Law 89;
R Zimmermann, “Roman Law and the Harmonisation of Private Law in Europe”, in Hartkamp &
Hesselink, Towards a European Civil Code, 21 ff.
view after the German Civil Code had entered into force.32 Lawyers in
France or Austria, Prussia and the Netherlands had found similar words a
century before, when the great codes of the age of Enlightenment had
formally replaced the ius commune. A codification of private law, so it was
assumed, contained a comprehensive and closed system of legal rules; it
constituted an autonomous interpretational space. Thus, it contributed to a
vertical as well as horizontal isolation of legal scholarship. The sense of
continuity of the development of private law got lost. In reality, however, a
code like the BGB has not been a radical turning point in German legal
33
history. For those who drafted the BGB did not, on a doctrinal level, intend
their code to constitute a fresh start, a break with the past. On the contrary;
they largely aimed at setting out, incorporating and consolidating “the legal
34
achievements of centuries”, as they had been processed and refined by
pandectist legal learning. Horst Heinrich Jakobs has, therefore, pointedly
referred to the BGB as a codification “which does not contain the source of
law in itself but has its source in the legal scholarship from which it was
created”.35 And Bernhard Windscheid, the leading intellectual force behind
the code, observed that the code “will be no more than a moment in the
development, more tangible, certainly, than the ripple in a stream but, none
the less, merely a ripple in the stream”.36 The BGB was designed to provide
a framework for an “organically progressive legal science”37 which was in
itself an organic product of the Civilian tradition. It was in this spirit that the
38
Imperial Court (Reichsgericht) started to interpret the BGB, and it is in this
spirit that we have learnt, once again, to question the radical separation
32 K Cosack, in H Planitz (ed), Die Rechtswissenschaft der Gegenwart in Selbstdarstellungen, vol I

(1924), 16.
33 See R Zimmermann, “Das Bürgerliche Gesetzbuch und die Entwicklung des Bürgerlichen
Rechts”, in M Schmoeckel, J Rückert & R Zimmermann (eds), Historisch-kritischer Kommentar
zum BGB, vol I (2003) (henceforth Schmoeckel et al, Historisch-kritischer Kommentar), Vor § 1,
notes 1 ff with further references.
34 B Windscheid, “Die geschichtliche Schule in der Rechtswissenschaft”, in B Windscheid,
Gesammelte Reden und Abhandlungen (edited by P Oertmann) (1904), 75.
35 H H Jakobs, Wissenschaft und Gesetzgebung im bürgerlichen Recht nach der Rechtsquellenlehre
des 19. Jahrhunderts (1983), 160. On the role of legal scholarship in the tradition of German law,
see S Vogenauer, “An Empire of Light?: Learning and Lawmaking in the History of German
Law” (2005) 2 Cambridge LJ 481
36 Windscheid (note 34), 76.
37 This was the vision of F C von Savigny, “Vom Beruf unserer Zeit für Gesetzgebung und
Rechtswisenschaft”, easily accessible today in H Hattenhauer (ed), Thibaut und Savigny: Ihre
programmatischen Schriften, 2nd edn (2002), 126.
38 See the contributions to U Falk & H Mohnhaupt (eds), Das bürgerliche Recht und seine Richter
(2000); Zimmermann, Roman Law, 53 ff.
between legal history and modern legal doctrine39 and to rediscover that
modern law cannot be understood in isolation; for the present is tied,
indissolubly, to the past from which it has emerged.40
This is as true of the BGB as it is of the Code Civil and the other national
codifications prevailing in modern Europe.41 But it is equally true of the
Principles of European Contract Law. They can be seen as the most recent
fruit of a genuinely European legal experience.
D. THE PRINCIPLES AS A CONTEMPORARY MANIFESTATION

OF THE EUROPEAN LEGAL TRADITION
(1) Common core

(a) Elements of contract law
In some respects the Principles do indeed specify a common core of the legal
systems of the EU member states (to which Switzerland and Norway may be
added). Basic concepts such as obligation, contract, damage, condition or
solidarity may be mentioned in this context, and it is interesting to see that
the French and English terminology is virtually identical in these five (and
many other) cases. Reference may also be made to certain ideas fundamental
to the understanding of contract law: a contract is concluded by way of offer
42
and acceptance, the parties have to have the intention to be legally bound,
43
illegal and immoral contracts cannot be tolerated, etc. But there are also
individual requirements for specific legal rules which are identical in all
Western European legal systems; set-off provides a good example, for it is
generally agreed that the creditor of the one claim must be the debtor under
the other, and vice versa (requirement of mutuality), that what the parties owe
44
each other must be of the same kind, and that the cross-claim has to be due.
Of course, it must be borne in mind that the same concept can have a
39 On the development of which see Zimmermann, Roman Law, 22 ff.

40 See von Savigny (note 29), vol I, xiv f; F C von Savigny, “Ueber den Zweck dieser Zeitschrift”
(1815) 1 Zeitschrift für geschichtliche Rechtswissenschaft 1.
41 For the Code Civil, see J Gordley, “Myths of the French Civil Code” (1994) 42 American Journal
of Comparative Law 459.
42 On the reception in England, see A W B Simpson, “Innovation in Nineteenth Century Contract
Law” (1975) 91 LQR 258 ff, 263 ff; J Gordley, The Philosophical Origins of Modern Contract
Doctrine (1991), 139 ff, 175 ff; Zimmermann, Obligations, 571 f; generally, see H Kötz, European
Contract Law (trans by T Weir), vol I (1997) (henceforth Kötz, European Contract Law), 16 ff
(offer and acceptance), 71 ff (intention to enter a legal obligation).
43 Zimmermann, Obligations, 697 ff; Kötz, European Contract Law, 157 ff.
44 For details, see R Zimmermann, Comparative Foundations of a European Law of Set-Off and
Prescription (2002) (henceforth Zimmermann, Comparative Foundations), 44 ff, 48 ff, 50 f.
somewhat different meaning in different legal systems and that a require-

ment such as the one that for a contract to come into existence the parties
must intend to be legally bound can have a different significance depending
on whether that legal system recognises other indicia of seriousness. Such
differences, however, are sometimes exaggerated. Thus, for example, it is
often said that the Anglo-American concept of contract does not so much
focus on the creation of obligations but on the creation of liability in case of
45
non-performance. Yet, in Sir Guenter Treitel’s textbook, a contract is
defined in words which are immediately comprehensible to Continental
lawyers, as “an agreement giving rise to obligations which are enforced or
46
recognised by law”. Some of these commonalities are based in the nature of
things (see, for example, the three requirements for set-off mentioned
above), whereas others are due to the fact that the respective doctrines derive
from the same historical roots; concerning the formation of contract these
47
roots lie in Natural law theory, in other cases (the concept of an obligation,
48
or of a condition) they reach back to Roman law.
(b) Variations of a theme

It should have become apparent from what has been said about the nature of
the ius commune that it is of little interest to ask how many rules of Roman
law we find in the Principles. Roman law was the origin of much of modern
contract law but hardly any of its rules have survived in an unchanged form,
or have found an identical manifestation in all modern legal systems. Even
with regard to fairly abstract rules which are, in principle, agreed upon every-
where, we find subtle variations. The treatment of illegal and immoral con-
tracts provides an example. All the rules contained in modern codifications
are based on Roman law: the lex Non Dubium of the Emperor Theodosius,
49
which elevated all statutory prohibitions to the status of leges perfectae, and
the suppression of transactions contra bonos mores by the Roman jurists and
50
emperors. Yet, while Article 20 I OR refers to “contracts with an illegal
45 This concept goes back to the pointed statements by O W Holmes, The Common Law (1881),
297 ff.
46 Sir G Treitel, The Law of Contract, 10th edn (1999) (henceforth Treitel, Contract), 1. For a com-
parative analysis see, most recently, C Coen, Vertragsscheitern und Rückabwicklung (2003),
19 ff.
47 Gordley (note 42), 79 ff; and see D J Ibbetson, “Natural Law and Common Law” (2001) 5
Edinburgh LR 15.
48 Zimmermann, Obligations, 1 ff, 716 ff.
49 Zimmermann, Obligations, 700 ff.
content”, § 134 BGB deals with a legal act “which violates a statutory
prohibition” and Article 3:40(2) BW with the violation of a “mandatory rule
of the law”. The French and Italian codes relate the respective legal rule to
their famous doctrines of cause or causa, though not in a completely identical
manner (“The cause is illegal if it is prohibited by the law”: Article 1133 Code
Civil; “The causa is illegal if it is contrary to mandatory rules of law”:
Article 1343 Codice Civile). In Austria and Switzerland contracts infringing a
51
statutory prohibition are void, whereas § 134 BGB limits this sanction to
cases where another legal consequence “does not follow from the statute”.
The Dutch code has a similar proviso though one referring to the intention of
52
the statute. Moreover, it renders a contract voidable rather than void where
the mandatory rule of law which has been infringed merely aims at the pro-
tection of one of the parties to the contract. Infringement of the boni mores is
53
dealt with in all the codes mentioned so far, and it invariably leads to invali-
dity. In France, Italy and the Netherlands, however, l’ordre public, l’ordine
54
pubblico and openbare orde are placed side by side with the boni mores.
English law distinguishes between statutory illegality and common law
illegality; illegality at common law is said to exist, where a contract is against
public policy.55
The Principles, too, retain the traditional bifurcation. On the one hand
they declare a contract to be of no effect “to the extent that it is contrary to
principles recognised as fundamental in the laws of the member states of the
56
European Union”. This formulation is intended to avoid concepts such as
the boni mores or public policy which carry a long history of different inter-
pretations. On the other hand, the Principles deal with contracts infringing a
57
“mandatory rule of law”. What is surprising, at first glance, is the great
flexibility in determining the effect of statutory illegality. In the first place,
regard must be had to the effect expressly prescribed in the mandatory rule
of law itself. Where that rule does not expressly prescribe the effects of an
infringement upon a contract, the contract may be declared to have full
effect, to have some effect, to have no effect, or to be subject to modification.
The decision has to be an appropriate and proportional response to the
51 Article 20 I OR; § 879 I ABGB.

52 Article 3:40(2) BW (“voor zover niet uit de strekking van de bepaling anders voortvloeit”).
53 Article 1133 Code Civil; § 879 I ABGB; Article 20 I OR; § 138 BGB; Article 1343 Codice Civile;
Article 3:40(1) BW.
54 Article 1133 Code Civil; Article 1343 Codice Civile; Article 3:40(1) BW.
55 See, e.g., E McKendrick, Contract Law, 5th edn (2003), ch 15.
56 Article 15:101 PECL.
infringement. A number of criteria are listed which have to be taken into

account in this respect, among them the purpose of the rule which has been
infringed and the seriousness of the infringement.58 These criteria are also
recognised in German law,59 a country where the courts have arrogated to
themselves a far-ranging discretion to decide about the invalidity or other-
wise of transactions violating statutory prohibitions.60 In particular, the courts
do not confine themselves to the alternatives: validity or invalidity, but they
61
also, under certain circumstances, uphold the contract in a modified form.
Basically, therefore, Article 15:102 PECL openly states what a rule like § 134
BGB hides behind a brief and clear-cut phrase. An inflexible rule along the
lines of “ex pacto illicito non oritur actio” was also, incidentally, unknown to
pre-Theodosian, classical Roman law where we find a graded system of leges
62
perfectae, leges minus quam perfectae and leges imperfectae.
(c) Regulae iuris

At other places, however, the Principles contain a number of rules which can
be regarded as modern versions of a regula iuris of the old ius commune. This
is as true of the contra proferentem rule (interpretation of contract terms not
63
individually negotiated against the party which has supplied them) as it is of
the provision that the true agreement prevails between parties who have
concluded an apparent contract which was not intended to reflect their true
agreement: plus valere quod agitur quam quod simulate concipitur.64 A
number of provisions in the law of extinctive prescription are based on a
general principle coined or, at any rate, authoritatively established by Bartolus:
agere non valenti non currit praescriptio (prescription does not run against a
65
person who is unable to bring an action). Thus, the running of the period of
prescription is suspended as long as the creditor is prevented from pursuing
his claim by an impediment which is beyond his control and which he could
58 Article 15:102(2), (3) PECL.

59 See O Jauernig, in O Jauernig (ed), Bürgerliches Gesetzbuch, 10th edn (2003), § 134 nn 14 f
(purpose of the statute); H H Seiler, “Über verbotswidrige Rechtsgeschäfte (§ 134 BGB)”, in
Gedächtnisschrift für Wolfgang Martens (1987), 729 ff (seriousness of the infringement).
60 As analysed by Seiler (note 59), 725 ff.
61 F Dorn, in Schmoeckel et al, Historisch-kritischer Kommentar, §§ 134–137, nn 19 ff.
63 Article 5:103 PECL; on the tradition of this rule, see Zimmermann, Obligations, 639 ff.
64 Article 6:103 PECL (according to the comparative notes to this rule it “is recognised in all
Member States”); for the tradition, see Zimmermann, Obligations, 646 ff.
65 E Spiro, “Zur neueren Geschichte des Satzes ‘agere non valenti non currit praescriptio’”, in
Festschrift für Hans Lewald (1953), 585 ff, 588; Zimmermann, Comparative Foundations, 132 f.
not reasonably have been expected to avoid or overcome.66 The postpone-

ment of expiry in case of incapacity is based on the same notion,67 as is the
postponement of expiry in cases where either the creditor or the debtor has
died,68 and also the practically very important rule that the running of the
period of prescription is suspended as long as the creditor does not know, and
could not reasonably know of, the identity of the debtor, or the facts giving rise
69
to his claim. The regulation of partial invalidity contained in the Principles
70
corresponds much better to the rule of utile per inutile non vidiatur than
§ 139 BGB, for Article 15:103 PECL establishes a presumption that the
remaining part of the contract continues to be valid. Since, however, this rule
is subject to an equally far-ranging proviso as the contrary rule of § 139 BGB,
both the Principles and German law effectively grant the judge a wide
discretion to determine the consequences of partial invalidity according to
71
reasonable interests of the parties. This was also, in fact, the approach
72
adopted by the classical Roman jurists. Much less flexibility is displayed by
German law in the application of § 817, 2 BGB, i.e. a codified version of in
pari turpitudine causa est melior possidentis.73 This is in marked contrast to
the way the maxim was applied by the Roman jurists.74 The Principles no
longer contain a specific rule to this effect. Nonetheless, the idea of in pari
turpitudine is hidden in the restitution rule of Article 15:104 PECL where
the decision whether to grant restitution is made dependent upon criteria such
as the purpose of the rule which has been infringed, the category of persons
75
for whose protection the rule exists, and the seriousness of the infringement.

69 Article 14:301 PECL; on which rule, see Zimmermann, Comparative Foundations, 106 f.
70 On which see Zimmermann, Obligations, 75 ff.
71 While, according to Article 15:103 PECL, the remaining part of the contract continues in effect
“unless, giving due consideration to all the circumstances of the case, it is unreasonable to uphold
it”, § 139 BGB focuses on the (usually hypothetical) will of the parties when it states that the
entire transaction is void “unless it may be assumed that it would have been entered into even
without the invalid part”; see Dorn, in Schmoeckel et al, Historisch-kritischer Kommentar, §§
139–141, n 18.
72 H H Seiler, “Utile per inutile non vitiatur”, in Festschrift für Max Kaser (1976), 127 ff.
74 H H Seiler, “§ 817 S 2 BGB und das römische Recht”, in Festschrift für Wilhelm Felgentraeger
(1969), 381 ff; Zimmermann, Obligations, 846 ff.
75 For an interesting account of the experiences of two mixed jurisdictions, see H MacQueen &
A Cockrell, “Illegal Contracts”, in R Zimmermann, D Visser & K Reid (eds), Mixed Legal Systems
in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004)
(henceforth Zimmermann, Visser & Reid, Mixed Legal Systems), 143 ff. One of the authors,
H MacQueen, was the reporter for the Chapter on illegality in the Land Commission.
(d) Good faith

Most of the Latin legal maxims just mentioned have found their way into the
modern national codifications. Thus, they belong to the common historical
heritage of European private law. The same is true, to a large extent, for the
principle contained in Article 1:201 PECL: “Each party must act in accord-
ance with good faith and fair dealing.” The tradition of this provision reaches
back to one of the most fertile agents in the development of Roman law: the
76
notion of bona fides. Under the ius commune, it continued to constitute a
vital mechanism for the implementation of substantive justice.77 Also today,
the principle of good faith in the exercise, performance and determination of
contractual rights and duties is recognised in some or other form in all the
legal systems of the European Union.78 Many of them contain a general
provision along the lines of Article 1:201 PECL. The significance attributed
to these provisions can differ substantially, depending, inter alia, on which
other doctrines are available to reach an equitable result.79 The draftsmen of
the Principles, too, have attempted to limit the recourse to Article 1:201
PECL by laying down a number of individual rules which can be seen as
specific manifestations of the principles of good faith and, at the same time,
of a common core of evaluations. Thus, each party owes to the other a duty to
80
co-operate in order to give full effect to the contract; parties have a duty not
to enter into negotiations in the knowledge that they will not conclude a
81
contract with the other side; they may not disclose confidential information
82
provided by the other party in the course of negotiations; nor are they allowed
to take advantage of each other’s improvidence, ignorance, inexperience or
83
lack of bargaining skills in a way which is grossly unfair. The requirements of
good faith and fair dealing play an important role in the implication of terms
into a contract;84 they provide support for rules like the ones on the quality of
76 S Whittaker & R Zimmermann, “Good Faith in European Contract Law: surveying the land-
scape”, in R Zimmermann & S Whittaker (eds), Good Faith in European Contract Law (2000)
(henceforth Zimmermann & Whittaker, Good Faith), 16 ff; and see, for a detailed account,
M J Schermaier, “Bona fides in Roman contract law”, in the same volume, 63 ff.
77 J Gordley, “Good faith in contract law in the medieval ius commune”, in Zimmermann &
Whittaker, Good Faith, 93 ff; F Ranieri, “Bonne foi et exercice du droit dans la tradition du civil
law”, 1998 Revue internationale de droit comparé 1055 ff.
78 See the case studies in Zimmermann & Whittaker, Good Faith, 143 ff.
79 See S Whittaker & R Zimmermann, “Coming to terms with good faith”, in Zimmermann &
Whittaker, Good Faith, 653 ff.
81 Article 2:301(2) PECL.
performance85 or change of circumstances;86 they allow a party to cure a non-

conforming tender which has been made before the time for performance
had arrived87 and to refuse specific performance, if this would cause him
unreasonable effort or expense.88 The provisions on the postponement of the
expiry of a period of prescription in case of negotiations89 and on the inter-
ference with conditions90 are also expressions of the principle of good faith.
(2) Convergence and tradition

In a great number of cases legal rules and institutions have been developed
under the ius commune, often on the basis of individual points of departure in
the Roman sources, which have, as such, been unknown to the Romans or
have even turned established principles on their head. Pacta sunt servanda
provides an important example. The principle is recognised in all modern
European legal systems, and thus also in the Principles, but it was estab-
lished, in pointed contrast to the Roman maxim ex nudo pacto non oritur
91
actio, by the medieval Canon lawyers. In a number of cases the codes of the
first great wave of codifications still reflect an older stage within the develop-
ment of the ius commune whereas the codifications from around the time of
1900 contain the more modern solutions. They have been able to benefit
from the results of pandectist legal scholarship which, in the famous words of
Rudolf von Jhering, sometimes managed to move beyond Roman law by
means of Roman law.92 This can be illustrated by comparing the two most
influential codifications of both periods, the French Code Civil and the
German BGB. The solutions adopted by the BGB have often shaped the
course of legal development – whether by way of legal scholarship or legis-
lation – in other European countries and have sometimes even significantly
influenced French law. Unsurprisingly, in these cases, the Principles endorse
what can be regarded as the latest stage in the development of the ius
commune.

88 Article 9:102(2)(b) PECL.
91 Zimmermann, Obligations, 537 ff; most recently, see P Landau, “Pacta sunt servanda: Zu den
kanonistischen Grundlagen der Privatautonomie”, in “Ins Wasser geworfen und Ozeane
durchquert”: Festschrift für Knut Wolfgang Nörr (2003), 457 ff.
92 R von Jhering, Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung, vol
I, 6th edn (1907), 14.
(a) Stipulatio alteri

93
This is true, for example, for the contract in favour of third parties. Gener-
ations of jurists from the time of the Glossators had attempted, with much
imagination and on the basis of some scattered indications in the Roman
sources, to restrict, or possibly even unhinge, the Roman principle of per
extraneam personam nobis adquiri non potest. But it was only in the
seventeenth century that the great breakthrough towards the acceptance of
the stipulatio alteri had taken place. For some time it was required, however,
that the third party had to have accepted the right offered to him on account
of the contract between the other two parties, and it was in the guise of this
consensual construction that the contract in favour of third parties entered
the Prussian, Bavarian and Saxonian codifications. The Austrian and French
codes were even more conservative.94 Thus, it was only the BGB that
managed fully to emancipate itself from the Roman concept of an obligation
as a vinculum iuris that attains its individuality by virtue of having been
created between two specific parties and thus permitted the third party
95
directly to acquire a right to claim under the contract in his favour. Many
96
subsequent codifications have received this model and even the French
courts have dropped, in the course of time, the restrictive requirements
97
contained in Article 1165 Code Civil. Thus, Article 6:110(1) PECL reflects
98
a broad consensus among European legal systems and one that can indeed
99
be described as a “progressive development” of the ius commune.
(b) Direct representation

The concept of direct representation also had to struggle for many centuries
against the Roman notion that nobody can be bound, or entitled, as a result of
100
a contract concluded between two other parties. By the end of the
193 For what follows, see Zimmermann, Obligations, 34 ff.

194 § 881 ABGB in its original form; Articles 1165, 1221 Code Civil.
195 § 328 BGB.
196 § 881 ABGB, as amended in 1916; Articles 410 f Astikos Kodikas; Article 1411 Codice Civile;
Article 6:253 BW.
197 See K Zweigert & H Kötz, An Introduction to Comparative Law (trans by T Weir), 3rd edn
(1998) (henceforth Zweigert & Kötz, Comparative Law), 462 ff; Zimmermann, Obligations, 44.
198 However, this principle is inappropriately jeopardised by Article 6:110(3) PECL; for criticism,
see R Zimmermann, “Vertrag und Versprechen: Deutsches Recht und Principles of European
Contract Law im Vergleich”, in Festschrift für Andreas Heldrich (2005), 467 ff. For an implemen-
tation of the same basic idea which is both much clearer and more sensible, see the Unidroit
Principles of International Commercial Contracts, as recently amended by Article 5.2.1.
199 Lando & Beale (note 6), xxiv.
seventeenth century the struggle had essentially been won, and so the Code
Civil does indeed recognise the possibility of direct representation.
However, the draftsmen of the Code did not conceive of it as an independent
legal institution in its own right but, following Pothier, as something
associated with the contract of agency.101 It was only in the course of the
nineteenth century that Jhering and Laband introduced the conceptual
distinction between the grant of authority and the legal relationship on the
102
basis of which the agent is entitled to act for the principal. The separation
between what can be termed the external and the internal relationship
characterises the regulation contained in the BGB, and the Greek, Italian
103
and Dutch codes have followed suit. In France, too, there has been a
considerable modification of the traditional perspective; nearly every
textbook on the law of obligations today contains an independent chapter on
104
représentation. The Principles, entirely in tune with the more modern
105
codes, confine themselves to a regulation of the external relationship; this
is also, incidentally, in accordance with the Geneva Convention on Agency in
the International Sale of Goods.106
(c) Change of circumstances

Somewhat less straightforward was the development of an idea contained
today in § 313 BGB (failure of the basis of a legal transaction).107 Moral philo-
sophers of antiquity had been the first to draw attention to the fact that, after
conclusion of a contract, circumstances may arise which completely reverse
the evaluation of the debtor’s obligation: compliance with the contract can
become a sin, non-compliance the debtor’s moral duty. It was from this seed
that in the high Middle Ages the doctrine of clausula rebus sic stantibus
began to germinate. It blossomed in the sixteenth and seventeenth centuries
but lost support from the eighteenth century onwards. The principle of pacta
sunt servanda was now accentuated; and a general proviso “rebus sic stantibus”
appeared to shake confidence in legal and commercial certainty. Thus, the
101 See, e.g., J Kleinschmidt, “Stellvertretungsrecht in Deutschland und Frankreich: Perspektiven

für eine Rechtsvereinheitlichung” (2001) 9 ZEuP 700.
102 See Kötz, European Contract Law, 220 f; Zweigert & Kötz, Comparative Law, 434 f.
103 §§ 164 ff BGB; Articles 211 ff Astikos Kodikas; Articles 1387 ff Codice Civile; Articles 3:60 ff
BW.
104 Kleinschmidt (2001) 9 ZEuP 700 f; Kötz, European Contract Law, 221.
105 Articles 3:101 ff PECL.
106 Radley-Gardner et al, Fundamental Texts, 283 ff. The Convention was concluded in 1983 but
has not, as yet, entered into effect.
clausula doctrine made its way neither into the Code Civil nor (in spite of
Bernhard Windscheid’s support for a modified version of it)108 into the BGB.
This very rigid point of view, until very recently, continued to prevail in
France; for the théorie de l’imprévision was adopted only in administrative
law and used to be rejected for dispute resolution in private law.109 Only in the
last few years has a certain relaxation occurred insofar as, in cases of a change
of circumstances entailing a significant imbalance in the contractual allocation
of rights and duties, the disadvantaged party is granted a right to ask for a
110
renegotiation of the contract. German courts, on the other hand, had started,
soon after the BGB had entered into effect, to turn the decision of its drafts-
111
men not to recognise the clausula rebus sic stantibus on its head; in response
to the problems posed by the consequences of the First World War on the
performance of long-term contracts the doctrine of Wegfall der Geschäfts-
112
grundlage was established by the Imperial Court on these foundations. In
113
the course of the “modernisation” of the German law of obligations it was
received into the Code. The Principles contain a rule which is very similar as
far as both its structure and the evaluations supporting it are concerned.114
(d) Determination of price

Determination of the price is another problem area where French law appears
to be out of step with modern legal development in Europe. Article 1108
Code Civil requires every contract to have “un objet certain”. Object, in
terms of this rule and in terms of Article 1129 is also, for instance, the
counterperformance to be given for the performance of services, for the rent
of an apartment, etc. Article 1591 Code Civil goes even further in requiring,
for the contract of sale, that the purchase price has to be determined and
indicated by the parties. The Code Civil, in this respect, is unmistakably
108 For Windscheid’s presupposition doctrine (Voraussetzungslehre), see U Falk, Ein Gelehrter
wie Windscheid (1989), 193 ff.
109 Zweigert & Kötz, Comparative Law, 524 ff.
110 B Fages, “Einige neuere Entwicklungen des französischen allgemeinen Vertragsrechts im
Lichte der Grundregeln der Lando-Kommission” (2003) 11 ZEuP 519 f.
111 K Luig, “Die Kontinuität allgemeiner Rechtsgrundsätze: Das Beispiel der clausula rebus sic
stantibus”, in R Zimmermann, R Knütel & J P Meincke (eds), Rechtsgeschichte und Privat-
rechtsdogmatik (2000), 171 ff.
112 J Emmert, Auf der Suche nach den Grenzen vertraglicher Leistungspflichten (2001), 247 ff;
C Reiter, Vertrag und Geschäftsgrundlage im deutschen und italienischen Recht (2002), 36 ff.
113 On which see R Zimmermann, “Modernizing the German Law of Obligations?”, in Peter Birks
& Arianna Pretto (eds), Themes in Comparative Law in Honour of Bernard Rudden (2002),
265 ff.
influenced by the Roman certum pretium requirement.115 According to

Article 6:104 PECL, on the other hand, the parties are to be treated as having
agreed on a reasonable price where the contract does not fix the price or the
method of determining it. Where the price is to be determined by one party,
and that party’s determination is grossly unreasonable, a reasonable price has
to be substituted.116 The Principles thus follow, essentially, the more liberal
117 118
regime laid down in § 315 BGB. It is based on pandectist doctrine. In the
meantime, however, the Assemblée plénière of the Cour de Cassation has
executed a spectacular volte face and no longer regards uncertainty of the
119
price as an obstacle to the validity of a contract. However, this new
120
approach (which mirrors the rules contained in the Principles) does not yet
relate to the contract of sale which continues to be subject to the strict regime
of Article 1591 Code Civil.
(e) Conventional penalties

Contractual penalty provisions have always been regarded as permissible in
121
the Civilian tradition. What was disputed, for a long time, was whether
even grossly excessive sums agreed upon by the parties have to be accepted as
valid. The Code Civil used to leave determination of the amount of the penalty
in the discretion of the parties.122 The BGB, on the other hand, accepts a
judicial right of reduction to a reasonable amount.123 The decisive impulse
towards recognition of such an exceptional right to modify a contractual
provision was given by the medieval Canon lawyers.124 This is the tradition
115 On which see Zimmermann, Obligations, 253 ff.

117 At the same time, the Principles go further than Article 55 CISG. On the controversies
preceding the adoption of that rule, and on the apparent contradiction between Article 55
CISG and Article 14 CISG, see G Hager, in P Schlechtriem, Kommentar zum Einheitlichen
Kaufrecht, 3rd edn (2000) (henceforth Schlechtriem, Kommentar), Article 55, notes 1 ff;
P Schlechtriem, in the same commentary, Article 14, notes 8 ff; cf also Kötz, European
Contract Law, 18 f.
118 H-J Winter, Die Bestimmung der Leistung durch den Vertragspartner oder Dritte (§§ 315 bis
319 BGB) unter besonderer Berücksichtigung der Rechtsprechung und Lehre des 19.
Jahrhunderts, Dr iur thesis, Frankfurt/Main (1979).
119 See Kötz, European Contract Law, 50 f; C Witz & G Wolter, “Das Ende der Problematik des
unbestimmten Preises in Frankreich” (1996) 4 ZEuP 648 ff; Fages (2003) 11 ZEuP 521 ff.
120 Fages (2003) 11 ZEuP 523.
122 See R-P Sossna, Die Geschichte der Begrenzung von Vertragsstrafen (1993), 144 ff. Contra: §
1336 II ABGB.
123 § 343 BGB.
124 Sossna (note 122), 64 ff. On the controversies surrounding the adoption of this “anomalous”
right into the BGB, see Sossna, 165 ff.
which, apart from German law, has also moulded the respective provisions in
the Greek, Italian and Dutch codes125 and which now also finds its expression
in Article 9:509 PECL. Even the French Code was revised in 1975 so as to
allow a judicial reduction of excessive conventional penalties.126
(f) Set-off
Set-off, according to Article 1290 Code Civil operates ipso iure: as soon as
two obligations capable of being set off against each other confront each
other, both of them are extinguished “de plein droit par la seule force de la
loi, même à l’insu des débiteurs”. This pronouncement is based on two
127
sources from the Corpus Juris Civilis. The BGB, on the contrary, requires
set-off to be asserted by an extra-judicial, informal and unilateral declaration
128
to the other party. The draftsmen of the German code, in this respect,
focused their attention on a Constitution by Justinian which appeared to indi-
cate that set-off specifically had to be raised, or pleaded, by the defendant in
129
the course of legal proceedings. Above all, however, they based their
decision on the case law of the Supreme Courts in Germany during the second
half of the nineteenth century, where it had come to be recognised that even
an extra-judicial declaration of the intention to set off two claims against each
other had the effect of extinguishing these claims.130 The German model of
set-off subsequently gained acceptance in many European countries; it has
been followed in Austrian law (in spite of the fact that § 1438 ABGB appears
to endorse the ipso iure effect of set-off),131 in Greece and in the Dutch Civil
Code.132 It also enjoys widespread support in Italian law.133 French courts and
legal writers have also found it impractical literally to implement the regime
125 Article 409 Astikos Kodikas; Article 1384 Codice Civile; Article 6:94 BW. For a comparative
survey, see G H Treitel, Remedies for Breach of Contract: A Comparative Account (1988)
(henceforth Treitel, Remedies), 223 ff; and see H Schelhaas, “The judicial power to reduce a
penalty” (2004) 12 ZEuP 386 ff.
126 Article 1152 II Code Civil.
127 Inst IV, 6, 30; C 4, 31, 14 pr.; on the Justinianic law, see P Pichonnaz, La compensation: Analyse
historique et comparative des modes de compenser non conventionnels (2001) (henceforth
Pichonnaz, La compensation), 260 ff; on the development in France, see Pichonnaz, 386 ff.
128 § 388 BGB.
129 C 4, 31, 14, 1 (“Ita tamen compensationes obici iubemus”; “opponi compensationem”).
130 On the development in Germany, see R Zimmermann, in R. Zimmermann, J Rückert & M
Schmoeckel (eds), Historisch-kritischer Kommentar zum BGB, vol II (in preparation),
(henceforth Zimmermann et al, Historisch-kritischer Kommentar) §§ 387–396, notes 12 ff.
131 See P Rummel, in P Rummel (ed), Kommentar zum Allgemeinen bürgerlichen Gesetzbuch, vol
II, 2nd edn (1992), § 1438, nn 11 f; S Dullinger, Handbuch der Aufrechnung (1995), 96 ff.
132 Article 441 Astikos Kodikas; Articles 6:127 (1), 6:129 BW.
133 In spite of Article 1242 Codice Civile; see G Cian, “Hundert Jahre BGB aus italienischer Sicht”
(1998) 6 ZEuP 220 f.
envisaged by Article 1290 Code Civil. Following the lead provided by

pandectist scholarship they have effectively attributed decisive influence to
the will of one of the parties to bring about the mutual extinction of the
obligation.134 As a result, there may indeed be said to be a “convergence
avancée”135 which is reflected in the provision of Article 13:104 PECL.
(g) Other examples

In all the examples mentioned above the point of convergence is defined by
developments which have moulded the last codification directly based on the
old European ius commune. The list of such examples could easily be ex-
tended. Thus, for example, the Principles expressly reject the causa doctrine
136
of the Romanistic legal family. A party’s right to terminate a contract for
non-performance is to be exercised, just as in German law, by notice to the
137
other party. French law, on the other hand, traditionally requires court
138
proceedings to effect termination. Remarkably, however, the Cour de
Cassation has recently recognised the possibility of an extra-judicial termin-
139
ation of the contract. Contrary to French law, but as in § 254 BGB,
contributory negligence and failure to reduce the loss suffered are treated
140
alike. Damages claims based on culpa in contrahendo, according to Articles
2:301 and 2:302 PECL, are regarded as a matter of contract law rather than
delict. The fulfilment of a condition does not (as in French law) operate
retrospectively but has prospective effect (as in German law).141 In this latter
instance neither the one nor the other solution can be said to have a greater
historical legitimacy;142 what can be said in favour of the German solution has
been summed up by Bernhard Windscheid: retrospectivity is an awkward
143
legal construct that should be avoided as far as possible.
134 Pichonnaz, La compensation, 505 ff; Zimmermann, in Zimmermann et al, Historisch-kritischer

Kommentar §§ 387–396, n 21.
135 Pichonnaz, La compensation, 601 ff.
136 See Article 2:101(1) (“without any further requirement”); Lando & Beale (note 6), 140.
137 Article 9:303 (1) PECL.
138 Article 1184 Code Civil; see Treitel, Remedies, 323 ff.
139 See Fages (2003) 11 ZEuP 523 f.
140 Articles 9:504 f PECL; for a comparative survey, see Treitel, Remedies, 179 ff; Lando & Beale
(note 6), 447 f.
141 Article 16:103 PECL; for French law, see Article 1179 Code Civil; for German law, see § 158
BGB.
143 B Windscheid, Lehrbuch des Pandektenrechts, vol II, 7th edn (1891), § 349, 4 (note 12 in fine).
(3) International legal development

Set-off, conditions, conventional penalties, contracts in favour of a third party,
the determination of the price: all of the doctrines discussed in the previous
section belong to the traditional themes of the old ius commune. The
Principles of European Contract Law, in these instances, take up and extend
into contemporary European law centuries-old lines of development. They
build on the historical experience of European private law. There are other
areas of the law, however, where none of the codifications directly based on
traditional Civilian doctrine contains a satisfactory set of rules. Here we have
to look at more recent developments which, in spite of a far-reaching
nationalisation of private law and private law scholarship, still occasionally
display a common pattern. Comparative analysis of these patterns of develop-
ment provides the basis for devising a modern uniform regime which can still
be described as an attempt intellectually to penetrate, organically to adapt,
rejuvenate, and bring up to date the legal material that has come down to
144
us. One of these areas is the law of extinctive prescription. Here we find in
the old codifications (France, Austria, Germany) still the general prescrip-
tion period of thirty years derived from the old ius commune, but also a
145
bewildering variety of shorter periods for many special situations. This
regime has very widely been regarded as unsatisfactory: it is incoherent,
unnecessarily complex, outdated, uncertain, unfair and inefficient.146 Thus,
for instance, in Germany the law of prescription was one of the central items
of the agenda of modernising the law of obligations. If we look at the
development of the law of prescription, at new enactments and proposed
drafts in European countries as well as internationally, we find three domin-
147
ant trends which fall in line with general considerations of policy. In the
first place, there is a clear tendency towards shorter periods of prescription.
Secondly, there is an equally clear development favouring uniformity. And in
the third place, and closely related to the general tendency towards shorter
144 Savigny (1815) 1 Zeitschrift für geschichtliche Rechtswissenschaft 6.

145 For Germany, see R Zimmermann, “Extinctive Prescription in German Law”, in E Jayme (ed),
German National Reports in Civil Law Matters for the XIVth Congress of Comparative Law in
Athens 1994 (1994), 153 ff; for further country reports, see E H Hondius (ed), Extinctive
Prescription: On the Limitation of Actions (1995).
146 These are the words chosen, for England, by the Law Commission in its Consultation Paper No
151 (1998), entitled “Limitation of Actions”, 241 ff. For France, see A Bénabent, “Le chaos du
droit de la prescription extinctive”, in Mélanges dédiés à Louis Boyer (1996), 123 ff; for
Germany, see F Peters & R Zimmermann, “Verjährungsfristen”, in Bundesminister der Justiz
(ed), Gutachten und Vorschläge zur Überarbeitung des Schuldrechts, vol I (1981), 186 ff.
147 For what follows, see Zimmermann, Comparative Foundations, 76 ff.
periods of prescription, the idea has been gaining ground that prescription
should not run unless the creditor knew (or ought reasonably to have known)
about his claim. A fourth characteristic of a modern prescription regime,
incidentally, follows from the latter point: a maximum period after which no
claim may be brought, regardless of the creditor’s knowledge, appears to be
necessary as a counterbalance to the discoverability principle. The model
sketched in these few lines provides the basis for the regulation contained in
Chapter 14 of the Principles: more consistently so than in the BGB after the
148
modernisation of the law of obligations where we still find, for instance, a
special regime for damages claims based on the seller’s liability for latent
149
defects.
(4) Uniform law

(a) CISG and the European legal tradition
The most important text both documenting and shaping the international
development in central areas of the law of obligations is the United Nations
Convention on Contracts for the International Sale of Goods (CISG). It has
been ratified, so far, by twelve of the EU member states.150 This means that
international commercial sales are governed by the same rules in the greater
part of the European Union. Moreover, CISG has significantly influenced
151
the Consumer Sales Directive and it has played an important role in national
152
law reforms concerning the law of sale and breach of contract. Obviously,
148 For a comparative evaluation, see R Zimmermann, “Das neue deutsche Verjährungsrecht – ein
Vorbild für Europa?”, in I Koller, H Roth & R Zimmermann, Schuldrechtsmodernisierungs-
gesetz 2002 (2002), 9 ff.
149 For criticism, see D Leenen, “Die Neuregelung der Verjährung” (2001) Juristenzeitung 552 ff;
R Zimmermann, D Leenen, H-P Mansel & W Ernst, “Finis Litium? Zum Verjährungsrecht
nach dem Regierungsentwurf eines Schuldrechtsmodernisierungsgesetzes” (2001) Juristen-
zeitung 688 ff. The matter has been solved more satisfactorily in the new Austrian law: §§ 932 ff
ABGB; see R Welser, B Jud, Die neue Gewährleistung, Kurzkommentar (2001).
150 See the table of ratification in Radley-Gardner et al, Fundamental Texts, 239 f.
151 See S Grundmann, in Bianca & Grundmann, EU Sales Directive, Introduction, nn 1 ff; U Magnus,
“The CISG’s Impact on European Legislation”, in F Ferrari (ed), The 1980 Uniform Sales Law:
Old Issues Revisited in the Light of Recent Experiences (2003), 129 ff. The correspondence
between these two international instruments will significantly contribute to the emergence of a
common framework of reference for the development of sales law in Europe; see Heutger
(2003) 11 ERPL 155 ff.
152 For Germany, see Bundesminister der Justiz (ed), Abschlussbericht der Kommission zur
Überarbeitung des Schuldrechts (1992), 19 f; P Schlechtriem, “Rechtsvereinheitlichung in
Europa und Schuldrechtsreform in Deutschland” (1993) 1 ZEuP 217 ff; P Schlechtriem, “10
Jahre CISG – Der Einfluss des UN-Kaufrechts auf die Entwicklung des deutschen und des
internationalen Schuldrechts” (2001) 1 Internationales Handelsrecht 12 ff; generally, see the
references in Schlechtriem, Kommentar, sub III. 4.
therefore, the draftsmen of the Principles have also been guided by an

instrument which is not only of great significance today but can be seen as a
contemporary emanation of a genuinely European tradition. It is based on
the (Hague) Uniform Laws on the International Sale of Goods and on the
Formation of Contracts for the International Sale of Goods. The driving force
behind these Uniform Laws was Ernst Rabel: a scholar who always empha-
sised the vital connection between past and present, who consistently looked
153
at legal history in order to comprehend the modern law and who produced
a treatise on the law of sale of goods which can still be seen as the model of a
154
modern monograph which is historical and comparative at the same time.
With this monograph Rabel laid the foundations for the harmonisation of
modern sales (and implicitly also central areas of general contract) law.
(b) Breach of contract

No less than fifty-two of the 132 articles contained in the first two parts of
PECL are modelled on a provision contained in CISG. Very often, however,
155
there are phrasing changes or modifications. Obviously, breach of contract
and formation of contract are the two areas where the influence of CISG has
been most prominent. The law relating to breach of contracts has been
devised, in both texts, from the point of view of the remedies rather than of
the different types of breach. The remedies of termination156 and damages,157
the concept of fundamental non-performance,158 excuse due to an impediment
beyond the debtor’s control159 and anticipatory non-performance160 are essential
structural elements taken over into the Principles from CISG. Specific per-
formance is a problem before which CISG has capitulated;161 the Principles
have attempted to find a compromise solution bridging the differences
162
between the Common Law and Civil Law approaches. For the right to
153 R Zimmermann, “‘In der Schule von Ludwig Mitteis’: Ernst Rabels rechtshistorische
Ursprünge” (2001) 65 RabelsZ 1 ff.
154 G Kegel, in G Kleinheyer & J Schröder (eds), Deutsche und Europäische Juristen aus neun
Jahrhunderten, 4th edn (1996), 504.
155 See the table in H M Flechtner, “The CISG’s Impact on International Unification Efforts: The
Unidroit Principles of International Commercial Contracts and the Principles of European
Contract Law”, in Ferrari (note 151), 169 ff (181 ff).
161 See Article 28 CISG; on which, see U Huber, in Schlechtriem, Kommentar, Article 28, nn 1 ff.
withhold performance the Principles – in contrast to CISG163 – present a

uniform solution in the tradition of the exceptio non adimpleti contractus;164
the rules on restitutio in integrum after termination for non-performance
deviate from the unsatisfactory model in CISG165 (though, in this instance,
they happen to be even more unsatisfactory);166 and price reduction has been
turned into a general remedy which far exceeds the scope of application of
167
Article 50 CISG.
(c) Formation of contracts

Concerning the mechanism for concluding a contract, both sets of rules very
largely correspond to each other (requirements for an offer to become
effective, revocation of an offer, requirements of an acceptance, modified
168
acceptance, late acceptance, revocation of acceptance). It is obvious that
the draftsmen of the Principles have followed the lead provided by CISG.
However, once again, they have modified a number of details and have also
decided certain disputes arising from the application of CISG. One such
dispute, which is of considerable practical importance, relates to the question
whether the fixing of a time for acceptance makes an offer irrevocable. The
compromise solution contained in Article 16(2) CISG can be interpreted
differently by contracting parties from a country such as England where
offers are always revocable and by offerors and offerees from a country such
as Germany where an offeror is normally bound by his offer.169 Article 2:202
PECL determines that a revocation of an offer is ineffective if it states a fixed
time for its acceptance. This rule endorses the continental view: the fixing of
a period for acceptance always renders an offer irrevocable.
163 But see now C Kern, “Ein einheitliches Zurückbehaltungsrecht im UN-Kaufrecht?” (2000) 8
ZEuP 837 ff.
164 Article 9:201 PECL. On the exceptio non adimpleti contractus, see W Ernst, Die Einrede des
nichterfüllten Vertrages (2000).
165 Articles 81 ff CISG; for criticism, see U Magnus, in Staudinger, Kommentar zum Bürgerlichen
Gesetzbuch, Wiener UN-Kaufrecht (Neubearbeitung 1999), Article 82, n 4; M Krebs, Die
Rückabwicklung im UN-Kaufrecht (2000), 91 ff; H G Leser & R Hornung, in Schlechtriem,
Einheitlichen, Article 82, nn 16 ff and Article 84, n 27a.
166 For criticism see Zimmermann (note 8).
167 Article 9:401 PECL. The Principles, insofar, reflect an international tendency; see A Sandrock,
Vertragswidrigkeit der Sachleistung (2003), 209 ff.
168 For details, see E Luig, Der internationale Vertragsschluss (2002), 33 ff.
169 Schlechtriem, in Schlechtriem, Kommentar, Article 16, n 10; E Luig (note 168), 121 ff.
(d) Other international Conventions

Obviously, therefore, the draftsmen of the Principles have critically exam-
ined the international Conventions establishing patches of uniform law, and
they have attempted productively to develop the ideas contained in these
170
instruments. A similarly critical attitude has, however, also been adopted in
other areas of the law where we do not yet have genuinely international (or
European) texts providing a convenient starting point for critical reflection,
for occasionally the Principles have found and adopted an unconventional
solution which does not even reflect a prevailing view among the European
legal systems, let alone restate their common core. Even in these instances,
however, we can refer to a “progressive development”171 within the intellec-
tual framework established by the old ius commune. Two examples will
demonstrate this assertion.
(5) “Progressive development”

(a) Once again: set-off
Everywhere in Europe, except for Scandinavia, Ireland, and England and
Wales (i.e. in all countries where Roman law has been received in this respect),
set-off operates in one of two ways. Either both obligations are extinguished
ipso iure “from the day of their coexistence”, or the right of set-off has to be
exercised by notice to the other party. Both obligations are then, however,
deemed to have expired at the moment at which, being suitable for set-off,
they first confronted each other.172 The latter solution, as has been mentioned,
is the more modern one, and it is preferable for a number of reasons. How-
ever, it also suffers from a severe doctrinal flaw: the notion of retrospectivity.
Retrospectivity constituted an attempt, by nineteenth-century German legal
doctrine, to reconcile two divergent groups of Roman sources, one of them
170 This is true, particularly, for the United Nations Convention on the Assignment of Receivables
in International Trade (reproduced in (2002) 10 ZEuP 860 ff; and see S V Bazinas, “Der Beitrag
von Uncitral zur Vereinheitlichung der Rechtsvorschriften über Forderungsabtretungen: Das
Übereinkommen der Vereinten Nationen über Abtretungen von Forderungen im
internationalen Handel” (2002) 10 ZEuP 782 ff); for a comparative analysis, see H Eiden-
müller, “Die Dogmatik der Zession vor dem Hintergrund der internationalen Entwicklung”
(2004) 204 Archiv für die civilistische Praxis 457 ff. The United Nations Convention on the
Limitation Period in the International Sale of Goods (printed in Radley-Gardner et al, Funda-
mental Texts, 269 ff) has only been relied upon in some respects; since it only deals with one
specific type of claim, it does not provide a suitable model for a general prescription regime.
171 Lando & Beale (note 6), xxiv; see above, the text to note 99.
172 See the text to notes 127 ff above; on the development of the retrospectivity doctrine, see
Zimmermann, in Zimmermann et al, Historisch-kritischer Kommentar, §§ 387–396, notes 14 ff,
23 ff.
favouring set-off ipso iure, the other requiring an assertion of set-off.173 In the
course of time, the notion of retrospectivity has become firmly entrenched,
in prevailing legal ideology, as an essential characteristic of a declaration of
set-off.174 Yet this notion is based on a centuries-old misunderstanding.175 The
phrase ipso iure appears to be of classical origin. It had been used, by the
Roman jurists, in the special context of the banker’s agere cum compensa-
176
tione. But the phrase had merely been intended to indicate that this type of
set-off was not one effected by the judge. The banker himself was forced, by
virtue of the formula granted to him by the praetor, to reduce his claim by the
amount of the other party’s counterclaim. The plaintiff was thus made ipso
iure, i.e. by the law itself, to effect set-off. It is probable that Justinian also still
177
attributed ex nunc effect to set-off. The decisive turn came with the
Glossators who reinterpreted set-off ipso iure as a form of set-off which
occurred automatically, sine facto hominis. This misunderstanding still today
casts its shadow on (as it would have been put in the nineteenth century) the
“construction” of set-off in France and all the countries influenced by French
law, but also in Germany178 and the countries following German law.179 From
the sources compiled and edited by Jakobs and Schubert we now know that
in the course of the deliberations leading up to the BGB Bernhard
Windscheid had recommended the attribution of merely prospective effect
to set-off;180 and he had done so in spite of the fact that, as a pandectist
scholar, he had previously made the intellectually most ambitious attempt to
explain the tension between set-off ipso iure and the requirement that set-off
181
had to be asserted.
(b) The unilateral promise

The other example is provided by Article 2:107 PECL which bluntly states:
“A promise which is intended to be legally binding without acceptance is
182
binding.” This is surprising in view of the fact that the great majority of
173 The text to notes 127 f above.

174 See Zimmermann, Comparative Foundations, 39 ff with references.
175 For what follows, see Pichonnaz (note 127), 9 ff (particularly 127 ff, 295 ff); Zimmermann, in
Zimmermann et al, Historisch-kritischer Kommentar, §§ 387–396, notes 5 ff.
176 Paul D 16.2.21; C 4.31.4 (Alex.).
177 Pichonnaz, La compensation, 260 ff.
178 § 389 BGB.
179 Such as, most recently, Dutch law: Article 6:129 BW.
180 Zimmermann, in Zimmermann et al, Historisch-kritischer Kommentar, §§ 387–396, n 24.
181 B Windscheid & T Kipp, Lehrbuch des Pandektenrechts, 9th edn (1906), § 349.
182 For a systematic and comparative analysis of this provision, see Zimmermann (note 98), 478 ff.
European legal systems traditionally follows Hugo Grotius in requiring an

acceptance before a promise can be regarded as legally binding.183 Only excep-
tionally has a different view been adopted. In the BGB, for instance, special
provision is made for the promise, by way of public notice, of “a reward for the
performance of an act, in particular for the production of a result”. It is
known as Auslobung, a unilateral act which need not be accepted.184 The Code,
in this respect, endorsed a view propounded by a number of pandectist
185
scholars: a view for which there are but the faintest traces in the Roman
186
sources. On a much more general level, Grotius’ view had been rejected by
the most influential Institutional Writer in Scotland, Viscount Stair, who held
a unilateral promise to be binding even if it has not been accepted by the
187 188
promisee. This is clearly based on Canon law. The doctrine of promise, as
189
expounded by Stair, has survived and remains part and parcel of Scots law.
And indeed, it may be asked why the release from an obligation, for example,
should only be effective if the debtor has agreed to it. This is by no means
self-evident, and the experience in German law has been that courts often get
into trouble when attempting to establish whether an offer, on the part of the
creditor, to conclude a contract of release has been accepted by the debtor.190
Strangely, this obvious illustration of Article 2:107 PECL is not mentioned in
the commentary to the rule.
183 H Grotius, De jure belli ac pacis libri tres, Amsterdami (1631), Lib. II, Cap. XI, § 14. Grotius’
doctrine was based on L Lessius, De iustitia et iure (see Gordley (note 42), 80 f); via Pothier, it
established itself in France and England: for France, see M Ferid & H J Sonnenberger, Das
Französische Zivilrecht, 2nd edn (1994), vol I/1, 1 F 63; for England, see Simpson (1975) 91
LQR 259.
184 § 657 BGB. For the origin of this provision, see F P von Kübel, “Das einseitige Versprechen als
Grund der Verpflichtung zur Erfüllung”, in W Schubert (ed), Die Vorlagen der Redaktoren für
die erste Kommission zur Ausarbeitung des Entwurfs eines Bürgerlichen Gesetzbuches, Recht
der Schuldverhältnisse, Teil 3 (1980), 1171 ff; F P von Kübel, “Einseitiges Versprechen”, in
Schubert, 475 ff. For a comparative overview, see R Zimmermann & P Hellwege, “Belohnungs-
versprechen: ‘pollicitatio’, ‘promise’ oder ‘offer’?: Schottisches Recht vor dem Hintergrund der
europäischen Entwicklungen” (1998) 39 ZfRV 137; J Gordley, The Enforceability of Promises in
European Contract Law (2001), 300 ff.
185 H Dernburg, Pandekten, 6th edn (1900), vol II, § 9; J Baron, Pandekten, 4th edn (1882), § 211.
186 Zimmermann, Obligations, 496 (n 15), 574 f.
187 Stair, Institutions of the Law of Scotland, 6th edn edited by D M Walker (1981), Book I, Title
10, §§ 3 f.
188 W D H Sellar, “Promise”, in K Reid & R Zimmermann (eds), A History of Private Law in
Scotland (2000) (henceforth Reid & Zimmermann, History), vol II, 252 ff.
189 Zimmermann & Hellwege (1998) 39 ZfRV 133 ff; Sellar (note 188), 267 ff, 277 ff; M Hogg,
Obligations (2003), 36 ff.
190 For a detailed analysis, see now J Kleinschmidt, Der Verzicht im Schuldrecht: Vertragsprinzip
und einseitiges Rechtsgeschäft im deutschen und US-amerikanischen Recht (2004).
(c) Undue influence Civilian style

Article 2:107 PECL is not, incidentally, the only example for another inter-
esting phenomenon: the re-emergence of certain solutions, or devices, adopted
in the earlier ius commune which have subsequently come to be suppressed.
Article 4:109 PECL can be mentioned in this context which grants a party the
right to avoid a contract if, at the time of conclusion of the contract, that party
was dependent on or had a relationship of trust with the other party and if the
other party took advantage of the first party’s situation in a way which is
grossly unfair, or took an excessive benefit. This provision – which comple-
ments a comparatively narrow doctrine of “threats”, i.e. duress (England) or
force and fear (Scotland)191 – is clearly inspired by the English concept of
“undue influence”.192 Contracts of suretyship concluded by close family
members of the main debtor, and the resulting case law, have demonstrated
the need for a similar rule also in Continental legal systems; in Germany, for
example, the general boni mores provision of § 138 I BGB had to be resorted
193
to in order to achieve satisfactory results. The older ius commune had
developed, on the basis of individual points of departure in the Roman sources,
194
the notion of metus reverentialis. Thus, according to the Accursian gloss, a
married woman who sells or incumbers an object belonging to her under the
influence of fear or reverence may revoke that transaction; the same applies
195
to a clergyman who “metu et reverentia episcopi” renounces his prebend.
This is true even if there has been no threat of physical harm. A particularly
vivid example of undue influence is reported by Matthaeus de Afflictis,
though with regard to another type of legal transaction. A husband had
secretly entered the room where his dying wife was engaged in making her
will. He bent his head over hers (“posuit faciem super faciem Catherinae”)
and entreated and flattered her into making a legacy of immoveable property
to himself. This legacy “metu reverentiali marito factum concurrentibus
importunis precibus in damnum alterius” was subsequently held to be

192 On which see Treitel, Contract, 378 ff; Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC
773.
193 M Habersack & R Zimmermann, “Legal Change in a Codified System: Recent Developments
in German Suretyship Law” (1999) 3 Edinburgh LR 272 ff; A Stadler, in Jauernig (note 59), §
765, n 4.
194 Pap D 29, 6, 3; Ulp D 44, 5, 1, 6; Ulp D 50, 17, 4; C 2, 19 (20), 11. For details of what follows,
see J du Plessis & R Zimmermann, “The Relevance of Reverence: Undue Influence Civilian
Style” (2003) 10 Maastricht Journal of European and Comparative Law 345 ff.
195 Edition used: Digestorum novum, seu pandectarum iuris civilis, tomus tertius, Geneva (1625)
(col 879).
invalid.196 Via Pothier these ideas were received in England. The doctrine of
undue influence, in turn, developed in England by the Court of Chancery,
was subsequently reimported by Scots and South African courts into a
Civilian legal environment.197
E. THE PRINCIPLES AND RE-EUROPEANISATION OF

PRIVATE LAW
(1) A basic background text shaping national legal developments
imperio rationis
It will have become clear by now that, as far as their substantive content is
concerned, the Principles of European Contract Law do not constitute a
replica of the old ius commune. They can, however, be regarded as an “organ-
198
ically progressive” development of that old ius commune: as a contem-
porary adaptation of the legal material that has come down to us. This is
completely in tune with the spirit of the old ius commune which depended
for its vitality on the belief of the ongoing character of law, its capacity for
199
growth over generations and centuries. Pandectist legal science was not
identical with the usus modernus pandectarum and the usus modernus was a
far cry from the usus antiquus. But they were all part of the same tradition. Of
course, in many respects there is a world of difference between the old ius
commune and the Principles. The old ius commune was based on a body of
sources of unparalleled richness and refinement. In comparison, the Principles
must appear insipid, dreary, bland and lifeless. On the other hand, however,
the great complexity of the legal sources of the old ius commune was the main
reason for its decline. In the age of Enlightenment, it no longer appeared
self-evidently right to apply a law that was riddled with contradictions, that
had given rise to the most intricate doctrinal disputes, that was wedded to
outdated and impractical subtilitates and that had been enacted by despotic
rulers of another age. At about the same time another great advantage of the
196 M de Afflictis, Decisionum sacri regni neapolitani consilii, Francofurti (1600), Decisio LXIX; cf
also I Menochius, De praesumptionibus, coniecturis, signis et indiciis commentaria, Lugduni
(1608), Liber IV, Praesumptio XII, nn 8 f.
197 See J Story, Commentaries on Equity Jurisprudence, 3rd edn (by A E Randall), 1920, §§ 234 ff;
G Lubbe, “Voidable Contracts”, in R Zimmermann & D Visser (eds), Southern Cross: Civil
Law and Common Law in South Africa (1996) (henceforth Zimmermann & Visser, Southern
Cross), 296 ff; Du Plessis & Zimmermann (2003) 10 Maastricht Journal of European and
Comparative Law 345 ff.
198 Savigny; see the text to note 37 above.
199 Berman (note 24), 9; and see above, the text to notes 28 ff.
old ius commune began to turn into a disadvantage. The language of the ius
commune was Latin. It was the language that was understood by every
learned lawyer who had received an academic legal training at any university
in Europe. With the rise of the vernacular as an academic language the use of
Latin was bound to be regarded as quaint and artificial. Dissemination of the
Principles, of course, is not facilitated by a common language. English appears
to be about to emerge as a kind of background language for international
communication. Nonetheless, in countries like France or Germany legal
literature written in English is not as readily received as it is in smaller nations
such as the Netherlands. In order to become a foundational work of a truly
European character the Principles therefore have to be translated into as
many of the official European languages as possible. This process is under
200
way at the moment.
There are also, however, characteristic aspects which the Principles share
with the old ius commune and which thus engender the hope that they can
serve as a nucleus for the emergence of a renewed European legal scholar-
ship. One which has been discussed above is their substantive content.
Another is their source of legitimacy. The old ius commune was widely
thought to apply ratione imperii.201 But this was only true of certain parts of
Europe. Moreover, in the middle of the seventeenth century it was clearly
demonstrated that Roman law had not been made applicable by formal
imperial enactment.202 If it continued to apply, it did so because of its intrinsic
qualities, i.e. imperio rationis. Particularly instructive is the situation prevail-
ing in nineteenth-century Germany. A number of German territories still
administered justice according to the contemporary, pandectist version of
203
the Roman common law. But even in the countries of codified law, the ius
204
commune continued to contribute its underlying legal theory: the codifi-
cations were always compared with, assessed and evaluated from the point of
view of the ius commune. Pandectist legal scholarship very largely achieved a
German unification on a scholarly level. Thus, it remained perfectly possible
200 G Rouhette, I de Lamberterie, D Tallon & C Witz, Principes du droit Européen du contrat
(2003); C Castronovo, Principi di diritto europeo dei contratti, Parte I e II (2001); C von Bar &
R Zimmermann, Grundregeln des Europäischen Vertragsrechts, Teile I und II (2003); P Barres
Benlloch, J M Embid Irujo & F Martinez Sanz, Principios de derecho contractual europeo,
Partes I y II (2003).
201 See Wieacker, Privatrechtsgeschichte, 97 ff.
202 See Wieacker, Privatrechtsgeschichte, 160 ff.
203 In 1890, about 14,416,000 (of a total of 50,000,000) inhabitants of the German Empire lived in
areas where mainly the ius commune was applicable. See the map edited by D Klippel,
Deutsche Rechts- und Gerichtskarte (1996), with an introduction by the editor.
204 Koschaker, Europa und das römische Recht, 292.
for a law professor to be called from Königsberg to Strasbourg, from Giessen

to Vienna, or from Heidelberg to Leipzig. Nor were law students, as far as
choice and change of universities were concerned, confined to the institu-
tions of the state in which they later wanted to practise.
Nineteenth-century Roman common law was thus able to provide an
intellectual bridge between the Prussian and the French, the Saxonian and
the Austrian codes. It subtly influenced the way in which the various codes
205
prevailing in different parts of Germany were understood and applied. It
decisively shaped all the codes of private law drafted or enacted in nineteenth-
century Germany, down to the BGB of 1900. At the same time, the Roman
common law was never static: it continued to be developed, to be refined and
to be adjusted.
The Principles of European Contract Law have not been drafted by a body
invested with any form of statutory authority. They do not constitute a formal
206
source of law. They are the product of scholarly work and thus they cannot
have any other authority than their intrinsic merit. If they are to gain
influence on the development of private law in Europe they can only do so
imperio rationis: because they are perceived to provide solutions to legal
problems which are both reasonable and free from national bias. It is impor-
tant to note, in this respect, that the Commission drafting the Principles has
consisted of lawyers from all member states of the European Union,207 that
no single legal system has been made the starting point from which the
208
Principles are derived, and that the process of drafting was not placed in
209
the hands of one individual person. The Principles, even though they con-
stitute a kind of virtual law, nonetheless provide a neutral yardstick for an
organic assimilation of the private law in Europe if they are used as a source
of inspiration by the protagonists responsible for the development of
210
European law, i.e. judges, legislators and professors.
205 For the “pandectification” of the Prussian and Austrian codes, see the references in
Zimmermann, Roman Law, 4ff. For the influence of pandectist scholarship outside Germany,
see the references in R Zimmermann, “Savignys Vermächtnis” (1998) Juristische Blätter 276
(note 18).
206 For the implications, see C-W Canaris, “Die Stellung der ‘Unidroit Principles’ und der
‘Principles of European Contract Law’ im System der Rechtsquellen”, in Basedow (note 1),
5 ff; R Michaels, “Privatautonomie und Privatkodifikation” (1998) 62 RabelsZ 580 ff.
207 Text following note 6 above.
208 Text following note 14 above
209 Text following note 12 above
210 R C van Caenegem, Judges, Legislators and Professors (1987); R C van Caenegem, An Historical
Introduction to Private Law (1988), 170 ff.
(2) Legislation
The disintegration of the old ius commune has led to the rise of the new
discipline of comparative law. Originally, however, attention was confined
nearly exclusively to foreign legislation. It was studied in order to improve the
quality of one’s own legislation. In its origins, therefore, the new discipline
was one of comparative legislation (législation comparée): “La comparaison
des lois étrangères est une étude de législation bien plus encore que de
jurisconsulte.”211 Draftsmen of new legislation, in the course of the nineteenth
century, usually looked at the way in which the problem at hand had been
dealt with by the legislatures of other countries. This applied, at first, to the
newly emerging areas of the law but subsequently also to codifications
concerning the classical core areas of private law. The draftsmen of the BGB,
for instance, very carefully took account of the French and Austrian codifica-
tions as well as of various other codes and draft codes in Germany and
Switzerland. This tradition has continued throughout the twentieth century.
The preparation of the new Dutch Civil Code provides another excellent
212
example. In recent years, uniform sales law has gained great significance as
a pacemaker for national law reform. The various steps on the road towards
modernising breach of contract and sale in German law have largely been
inspired first by ULIS and then by CISG.213 The Principles of European
Contract Law constitute a model law which has the potential to attain a
similar significance. It was one of the criticisms levelled against the so-called
“Discussion Draft” of a statute for the modernisation of the German law of
obligations, published in September 2000, that it failed to take account of
more than ten years of legal development in Europe, as evidenced in the Dutch
Civil Code, the Principles of European Contract Law and the Principles of
214
International Commercial Contracts. Thus, it was only in the final stages of
215
the German reform process that the Principles were taken into consideration.
211 See H Coing, “Rechtsvergleichung als Grundlage von Gesetzgebung im 19. Jahrhundert”
(1978) 7 Ius Commune 160 ff; H Coing, Europäisches Privatrecht, vol II (1989), 56 ff; Zweigert
& Kötz, Comparative Law, 48 ff; the quotation is from E-R Laboulaye, founder of the Société
de législation comparée, the first association for comparative law in Europe; see Coing,
Europäisches Privatrecht II, 61 and Coing, “Laboulaye” (1993) 1 ZEuP 519 ff.
212 U Drobnig, “Das neue niederländische bürgerliche Gesetzbuch aus vergleichender und
deutscher Sicht” (1993) 1 ERPL 174.
213 Text to note 152 above.
214 B Dauner-Lieb, “Die geplante Schuldrechtsmodernisierung – Durchbruch oder Schnellschuss?”
(2001) Juristenzeitung 15; U Huber, “Das geplante Recht der Leistungsstörungen”, in Ernst &
Zimmermann (note 1), 108 f; Zimmermann (note 113), 284 f.
215 Huber (note 214), 31 ff; C-W Canaris, “Die Reform des Rechts der Leistungsstörungen”
(2001) Juristenzeitung 499 ff.
However, prescription was the only area of the law where they were able to
exercise a significant influence; the German government specifically
acknowledged to have adopted, in large parts, the model proposed in the
Principles of European Contract Law.216
(3) Courts of law

The existing national codes are interpreted, developed and adapted to new
circumstances by the national courts of law. This is a process which has often
changed the national systems of private law as dramatically as the interven-
tion of the legislature. For some time already, it has been argued that the
217
insights of comparative law have to play a role in this process. The then
President of the German Federal Supreme Court, Walter Odersky, has even
gone further by advocating what he calls a harmonising method of interpre-
tation: the national judge, in the process of applying his own national law, may
legitimately be guided by the consideration that a particular solution would
serve the harmonisation of European law. With the increasing European
218
integration this argument should gain an ever increasing weight. At the
same time, however, Odersky also pointed at the difficulties posed by this
219
approach. Even for the judges of national supreme courts it is virtually
impossible to establish the legal position on a particular point in all the other
EU member states. Sometimes he will be able to turn to the pertinent legal
literature which, however, is not always easy to find and is also not usually
aimed at the harmonisation of European law. The Principles, apart from
textbooks and source books on European contract law,220 could play a very
significant role in this respect, for they provide a beacon, established on the
basis of comparative research and international co-operation, which can
serve to guide the interpretation and development of the national legal
systems. In Germany this idea does not appear, so far, to have gained
acceptance; this is hardly surprising in view of the fact that even the “normal”
216 “Bericht des Rechtsausschusses, BT-Drucksache 14/7052”, easily accessible in C-W Canaris
(ed), Schuldrechtsmodernisierung 2002 (2002), 1051 ff (1066); cf also “Begründung der
Bundesregierung zum Entwurf eines Gesetzes zur Modernisierung des Schuldrechts, BT-
Drucksache 6857”, in Canaris 569 ff, 600, 612 f. For a comparative analysis, see Zimmermann
(note 148), 9 ff.
217 See, e.g., K Zweigert, “Rechtsvergleichung als universale Interpretationsmethode” (1949/50)
15 RabelsZ 5 ff; Zweigert & Kötz, Comparative Law, 18 ff.
218 W Odersky, “Harmonisierende Auslegung und europäische Rechtskultur” (1994) 2 ZEuP 1 ff.
219 Odersky (1994) 2 ZEuP 4.
220 Kötz, European Contract Law; H Beale, A Hartkamp, H Kötz & D Tallon, Cases, Materials
and Text on Contract Law (2002).
comparative interpretation is practised but rarely.221 Many Continental

lawyers will be surprised to see that the House of Lords was one of the first
European Supreme Courts to refer to the Principles. This happened in a
decision of 2001 dealing with the notion of “good faith” in the context of the
Unfair Terms in Consumer Contracts Regulations.222 In the Netherlands a
number of conclusions by various Advocate-Generals have invoked the
223
Principles, but the Hoge Raad does not yet appear to have quoted them.
(4) Legal scholarship

In the first place, however, it is the task of legal scholarship to take note of the
Principles, to provide critical comment and discussion, and intellectually to
relate them to the various national legal systems. This does not have to be,
and indeed should not be, a one-way process. For as much as national legal
developments have to be evaluated against the yardstick provided by the
Principles, the Principles may not pass muster when they are evaluated
against the background of national legal experiences which have been
gathered over a long period and by sophisticated courts and legal writers.
There are a number of deficiencies in the Principles. Thus, for example, the
Principles contain in their three parts three sets of rules dealing with
restitution of benefits received under a contract that has been avoided, that
has turned out to be invalid or that has been terminated.224 This triplication of
rules as well as the differences between them are not justifiable. Moreover,
one of these regimes is based on an outmoded model, whereas the other two
leave important questions unregulated.225 More instances could be men-
tioned where the Principles lack consistency or where they will have to be
221 S Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent: Eine
rechtsvergleichende Untersuchung der Rechtsprechung und ihrer historischen Grundlagen, vol
I (2001), 43 with further references. For a comparative overview, see U Drobnig & S van Erp
(eds), The Use of Comparative Law by Courts (1999); for Scotland, see H L MacQueen,
“Mixing it? Comparative Law in the Scottish Courts” (2003) 11 ERPL 735 ff.
222 Director-General of Fair Trading v First National Bank [2002] 1 AC 481 (HL) at 500 per Lord
Steyn and 502 per Lord Hope. On this decision, see S Whittaker, “Assessing the fairness of
contract terms: the parties’ ‘essential bargain’, its regulatory context and the significance of the
requirement of good faith” (2004) 12 ZEuP 75 ff.
223 The minority in a decision of the Swedish Supreme Court has referred to Article 2:205(1)
PECL: 2000 Nytt Juridiskt Arkiv 747. I am grateful to Mr Justice Torgny Håstad for the
reference.
224 Articles 4:115, 9:305 ff, 15:104 PECL.
225 For criticism, see Zimmermann (note 8); generally, see P Hellwege, Die Rückabwicklung
gegenseitiger Verträge als einheitliches Problem: Deutsches, englisches und schottisches Recht
in historisch-vergleichender Perspektive (2004).
refined and specified.226 In many other cases, however, the comparison will
reveal quirks and idiosyncracies of the national legal systems and will lead to
a reappraisal of the latter. For Germany the process of comparative assess-
ment was initiated at a symposium on “Unification of European Contract
Law and German Law” which was held in the Hamburg Max Planck Institute
in 1999;227 it was designed to re-establish the intellectual contact between
private law legal doctrine and comparative law under the auspices of the
Principles of European Contract Law and the Principles of International
Commercial Contracts. At the most recent biannual meeting of the associa-
tion of German-speaking professors of private law the Principles of European
Contract Law featured prominently in two of the four lectures, the one dealing
228 229
with breach of contract, the other with the law of assignment of claims.
In the latter paper the technical quality and internal consistency of Chapter 11
of the Principles were emphasised and, on that basis, a number of changes to
the German law of cession were recommended. Unfortunately, however, the
Principles have not yet worked their way into the general textbooks and com-
mentaries on German private law. Dutch writers, on the other hand, refer to
the Principles almost as a matter of routine even if they merely deal with a
question of Dutch law. And a recent collection of texts, cases and materials on
English contract law invokes the Principles on a number of occasions even
though it specifically does not describe itself as a book on comparative law.230
Another very interesting initiative has been taken in the Netherlands. Five
authors have systematically examined their own legal system from the point
of view of the Principles and have thus, by using a supranational frame of
231
reference, made Dutch law more easily accessible to foreign lawyers.
226 For criticism concerning Article 6:110 PECL (Stipulation in Favour of a Third Party), see
Zimmermann (note 98), 478.
227 Basedow (note 1). For France, see now P Rémy-Corlay & D Fenouillet (eds), Les concepts
contractuels francais à l’heure des Principes de droit européen des contrats (2003).
228 H-P Mansel, “Die Kaufrechtsreform in Europa und die Dogmatik des Leistungsstörungs-
rechts” (2004) 204 Archiv für die civilistische Praxis 396 ff. Cf. also R Zimmermann, “Remedies
for Non-Performance: The revised German Law of Obligations, viewed against the Background
of the Principles of European Contract Law” (2002) 6 Edinburgh LR 271 ff.
229 Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 ff.
230 E McKendrick, Contract Law: Text, Cases and Materials (2003), 55 f, 102, 133, 276 f, 552, 615
f and more frequently; cf. in particular 417 f. For Scotland, see the remarks by MacQueen
(2003) 11 ERPL 751 on two recent texts on contract law that have drawn significantly on the
Principles: H L MacQueen & J Thomson, Contract Law in Scotland (2000) (a student book)
and W W McBryde, The Law of Contract in Scotland, 2nd edn (2001) (a practitioner work).
231 D Busch, E Hondius, H van Kooten, H Schelhaas & W Schrama, The Principles of European
Contract Law and Dutch Law: A Commentary (2002). Cf also D Busch and E Hondius, “Ein
neues Vertragsrecht für Europa: Die Principles of European Contract Law aus niederländ-
ischer Sicht” (2001) 9 ZEuP 223 ff.
(5) Autonomous convergence

Occasionally, today, we also witness what may be called a process of autono-
mous, or spontaneous, harmonisation of European contract law. Bertrand
Fages has recently drawn attention to a number of significant developments,
instigated by the Cour de Cassation, which have pragmatically steered French
contract law in a direction coinciding with that adopted by the European
Principles.232 Particularly significant, in this respect, are the growing promin-
ence of the principle of good faith, the new approach towards the deter-
mination of price, and the recognition of an extra-judicial way of terminating
contracts after breach of contract. These developments cannot be credited to
the Principles which have probably not been present in the judges’ minds.
But if French courts take their bearings by a point of reference which has,
independently, also been identified by the Principles, this may be taken as a
confirmation of the approach adopted in the Principles. Another example of
an autonomous convergence may be provided by the English law on
limitation of actions, as soon as the report of the Law Commission presented
in July 2001 is implemented; this report proposes a regime which, in many
233
essential features, resembles the model proposed by the Principles.
(6) Legal training

Legislators, judges and professors have been, and still are, the protagonists of
legal development in Europe. Their minds have been, and still are, shaped by
the legal training they have received. The intellectual unity of the old ius
commune was very largely provided by a training based on the same legal
sources. Today, too, the Europeanisation of private law decisively depends on
a Europeanisation of the legal training provided in the various universities
throughout Europe.234 Once again, the Principles can play a very important
role in this respect. They provide a nucleus around which a general theory of
European contract law can crystallise: a general theory which can conceiv-
ably attain the same position as the ius commune in the lecture rooms of
232 Fages (2003) 11 ZEuP 514 ff.

233 Report on Limitation of Actions (Law Com No 270, 2001).
234 See F Ranieri, “Der europäische Jurist: Rechtshistorisches Forschungsthema und rechtspoli-
tische Aufgabe” (1990) 17 Ius Commune 9 ff; H Kötz, “Europäische Juristenausbildung” (1993)
1 ZEuP 268 ff; R Goode, “The European Law School” (1993) 13 Legal Studies 1 ff; B Grossfeld,
“Europäisches Recht und Rechtsstudium” (1993) Juristische Schulung 710 ff; B de Witte & C
Forder (eds), The Common Law of Europe and the Future of Legal Education (1992);
A Flessner, “Deutsche Juristenausbildung” (1996) Juristenzeitung 689 ff; P Häberle, “Der
Europäische Jurist” (2002) 50 Jahrbuch des öffentlichen Rechts der Gegenwart 123 ff.
nineteenth-century German universities. “Neither the Prussian Code, nor

the law of the Code Civil or that of the Badisches Landrecht, nor indeed the
law of the Saxonian Civil Code became the focal point for legal training in the
universities of the respective states“ as it is stated in a memorandum of
1896.235 It was the training in the ius commune that was regarded as suitable
to provide a sufficient introduction to the understanding of the codified laws.
Thus, “the possibility existed that the Prussian, Saxonian or the native of
Baden could receive his educational background in law at a university in a
different state, as long as he acquired, at the end of his studies, some more
specific … knowledge of the legal system which … he might be required to
apply for the rest of his life”. Our position today is different in some respects.
But the vision of a European legal training in spite of the variety of national
systems of law very much resembles what was reality in earlier times. Why
should it not be possible, today, to make the Principles the starting point for
courses in contract law in Germany as much as in France or England? The
students would then become familiar with a common frame of reference
which would enable them to appreciate the contours of their own legal system
much more clearly and, at the same time, facilitate access to the others.
F. CONCLUSION
All in all, it is obvious today that the discussions concerning a European
236
contract law have considerably intensified over the last few years. The main
actors on the stage of the institutionalised Europe, i.e. Council, Commission
and Parliament of the European Union, have even envisaged the possibility
of a codification of European contract law. Whether, eventually, such a step
will be taken or not, the academic community would neglect its duty if it did
not set out to prepare, refine and critically examine the intellectual
foundations for a European contract law. The Principles are an attempt to
establish such foundations. They should be taken into consideration not only
by comparative lawyers but, particularly, by all those engaged in shaping and
elucidating national legal doctrine. The Principles may sharpen an awareness
235 E Friedberg, Die künftige Gestaltung des deutschen Rechtsstudiums nach den Beschlüssen der
Eisenacher Konferenz (1996), 7 f.
236 See Jansen, Binnenmarkt: Privatrecht und europäische Identität, 2 ff (with references); most
recently, see D Staudenmayer, “Ein optionelles Instrument im Europäischen Vertragsrecht”
(2003) 11 ZEuP 828 ff; C von Bar & S Swann, “Response to the Action Plan on European
Contract Law: A More Coherent European Contract Law (COM (2003) 63)” (2003) 11 ERPL
595 ff.
for the peculiarities of the national legal systems and provide inspiration for
their interpretation and development. Thus, they can serve as a catalyst for a
“soft” harmonisation of the European legal systems. Soft harmonisation
would appear, in the short and medium term, to be the preferable alternative
to central regulation, and the one in tune with the tradition of the old ius
commune.237 At the same time, it may pave the way towards a codification
which is as widely accepted in Europe as the Code Civil in France or the
BGB in Germany.
237 Zimmermann (1998) Juristische Blätter 273 ff; Zimmermann, “Roman Law and the Harmon-
isation of Private Law in Europe” (note 31), 21 ff; for a different view, see O Lando, “Why
Codify the European Law of Contract” (1997) 5 ERPL 525 ff; O Lando, “The Principles of
European Contract Law after Year 2000”, in F Werro (ed), New Perspectives on European
Private Law (1998), 59 ff; W Tilmann, “Eine Privatrechtskodifikation für die Europäische
Gemeinschaft”, in P-C Müller-Graff (ed), Gemeinsames Privatrecht in der Europäischen
Gemeinschaft, 2nd edn (1999), 579 ff; J Basedow, “Das BGB im künftigen europäischen
Privatrecht: Der hybride Kodex” (2000) 200 Archiv für die civilistische Praxis 445 ff;
J Basedow, “Codification of Private Law in the European Union: The Making of a Hybrid”
(2001) 9 ERPL 35 ff. For a balanced assessment of the debate, see W van Gerven, “A Common
Law for Europe: The Future Meeting the Past?” (2001) 9 ERPL 485 ff.
2 Good Faith
Hector L MacQueen
A. GOOD FAITH AND FAIR DEALING IN PECL

B. GOOD FAITH IN MIXED LEGAL SYSTEMS GENERALLY
C. THE CODIFIED MIXED SYSTEMS
(1) Louisiana
(2) Quebec
(3) Israel
D. UNCODIFIED MIXED SYSTEMS
(1) Scotland
(2) South Africa
E. LESSONS
A. GOOD FAITH AND FAIR DEALING IN PECL

Good faith is a powerful concept in PECL. Almost from the outset, Article
1:201 PECL declares that “each party must act in accordance with good faith
and fair dealing”, and that this “duty” may not be excluded or limited by the
parties. Comment A says that the Article “sets forth a basic principle running
through the Principles”, while Comment B adds: “Its purpose is to enforce
community standards of decency, fairness and reasonableness in commercial
transactions.” Even the recognition of parties’ freedom to enter into a
contract and determine its contents is made “subject to the requirements of
good faith and fair dealing” (Article 1:102 PECL). Amongst the various
purposes for which the Principles are to be interpreted and developed, “the
need to promote good faith and fair dealing” is listed first, ahead of “certainty
in contractual relationships and uniformity of application” (Article 1:106
PECL).
The constant conjunction in PECL of good faith with fair dealing indicates
that overall an objective standard is intended, rather than a subjective one of
simple honesty. Comment E to Article 1:201 PECL says:
43
“Good faith” means honesty and fairness in mind, which are subjective concepts.
1
… “Fair dealing” means observance of fairness in fact which is an objective test …
There are links to other concepts in PECL. Comment A says that Article 1:201
PECL is a companion to the Article on usages, which makes binding between
the parties agreed, established or generally applicable and reasonable usages
and practices (Article 1:105 PECL). In this way are ideas about “community
standards”, as well as the standards the parties set themselves, articulated in
the actual text. Article 1:202 PECL, which immediately follows the article
stating the good faith obligation of the parties, further imposes on them a
duty to co-operate to give full effect to the contract (although unlike good faith
and fair dealing this duty is not expressly made unexcludable or unlimitable).
Article 1:302 PECL says that “reasonableness [another frequently used
concept in the Principles] is to be judged by what persons acting in good faith
and in the same situation as the parties would consider to be reasonable”.
The application of good faith and fair dealing is fleshed out in several more
specific provisions, although Comment B to Article 1:201 PECL points out
that the concept is “broader than any of these specific applications”. Thus,
while parties negotiating a contract are not liable for failure to reach an
agreement, negotiating or breaking off negotiations contrary to good faith
and fair dealing leads to liability for the losses caused to the other party.
There is such liability if a party enters into or continues negotiations with no
real intention of reaching an agreement with the other party (Article 2:301
PECL).2 Good faith and fair dealing may also require a negotiating party to
disclose information to the other party, otherwise any resultant contract may
be avoided (Article 4:107 PECL). The requirement will typically arise for a
party who has special expertise on the matter in issue, and account will also
be taken of the cost of acquiring the information, whether the other party
could reasonably acquire the information for itself, and the apparent
importance of the information to the other party (Article 4:107(3) PECL).
Good faith and fair dealing are also among the “relevant circumstances” to
which regard is to be had in interpreting the contract (Article 5:102 PECL),
although it is difficult to see either as a “circumstance” comparable with some
3
of the other matters listed in the Article. Terms stemming from good faith
1 “Good faith” sometimes appears on its own in PECL: see e.g. Articles 1:302, 3:201(3).
2 See also Article 6:111(3) PECL (damages may be awarded for loss suffered through a party refusing
to negotiate or breaking off negotiations contrary to good faith and fair dealing where contract has
become excessively onerous as a result of change of circumstances since the contract was concluded).
3 In his contribution to this volume (at 202) Professor Clive points out that good faith and fair
dealing are “considerations” rather than “circumstances”.
good faith 45
and fair dealing may be implied (Article 6:102 PECL). Since this power is not
limited to consistency with the express terms, freedom of contract may here
be subject to good faith and fair dealing requirements. The Comments do not
refer to this, however, seeing the main function of the implied term as filling
gaps in the contract. If, contrary to duties of good faith and fair dealing or co-
operation, a party prevents or brings about the fulfilment of a condition, to
the respective disadvantage or advantage of the other party, the condition is
to be deemed either fulfilled or unfulfilled, as the case may be (Article 16:102
PECL).
A court may also regulate the provisions of the contract to be in
accordance with the demands of good faith and fair dealing. Here again we
see freedom of contract being hemmed in by good faith and fair dealing. In
cases where one party had taken advantage of another’s relative weakness or
susceptibility to influence in a way that was grossly unfair or took excessive
benefit, courts are empowered to adapt a contract to bring it into accordance
with what might have been agreed had the requirements of good faith and
fair dealing been followed (Article 4:109 PECL). Terms not individually
negotiated (i.e. in standard form contracts) may be avoided if, “contrary to
good faith and fair dealing”, they cause a “significant imbalance in the parties’
rights and obligations under the contract” (Article 4:110 PECL). But the
remedies of avoidance and damages for mistake and incorrect information
(misrepresentation) may be excluded unless to do so is contrary to good faith
4
and fair dealing (Article 4:118 PECL). Likewise remedies for non-performance
may be excluded or restricted unless it would be contrary to good faith and
fair dealing to invoke the exclusion or restriction (Article 8:109 PECL).
All this seems to stand in clear contrast to the classical Common Law view
against general duties of good faith in contracts, succinctly expressed by
Bingham LJ in a well-known dictum: “English law has characteristically com-
mitted itself to no such overriding principle but has developed piecemeal
5
solutions in response to demonstrated problems of unfairness.” Equally well
known is Lord Ackner’s remark in Walford v Miles – “the concept of a duty to
carry on negotiations in good faith is inherently repugnant to the adversarial
position of the parties when involved in negotiations” 6 – almost diametrically
opposite to the position expressed in Articles 1:201 and 1:202 as well as in
4 Note that the remedies for fraud, threats and excessive benefit or unfair advantage-taking may
never be excluded or restricted: Article 4:118(1) PECL.
5 Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 at 439.
6 Walford v Miles [1992] 2 AC 128 at 138. For further argument against a general principle of good
faith in contract negotiation, see S A Smith, Contract Theory (2004), 197–207.
Article 2:301 PECL. Commentators such as Michael Bridge argue that the
imposition of a general standard of good faith would undermine commercial
certainty to an unacceptable degree, and that “it is better to confront
particular problems than to adopt a general ethical imperative. … The pur-
pose of legislation should not be to make a moral demonstration.”7 He
questions the machinery by which community values should be introduced
into private litigation (the judiciary at all, but especially lower levels), and
wonders how the relevant community is to be defined. Common Law doubts
about good faith led to the well-known compromise of Article 7.1 CISG: “In
the interpretation of this Convention, regard is to be had to … the obser-
vance of good faith in international trade.” But nevertheless, outside England
good faith has been gaining increasing acceptance and prominence in the
Common Law world, most notably in the Uniform Commercial Code’s duty
of good faith in performance (§ 2–103 UCC), and also in Australian, New
8
Zealand and Canadian court decisions.
Observing the UCC obligation of good faith in performance highlights one
further point about PECL: the almost complete lack of reference to good
faith and fair dealing in the chapters on performance, non-performance and
remedies for non-performance. As we have already seen, however, this lack
cannot be read as meaning that good faith and fair dealing are excluded from,
or irrelevant to, these chapters. So the Comments link to good faith principles
the limits on the remedy of specific performance in Article 9:102 PECL, and
the aggrieved party’s duty to mitigate loss flowing from the other’s non-
9
performance (Article 9:505 PECL). Again, Comment B to Article 1:201
PECL notes that the Article
may take precedence over other provisions of these Principles when a strict
adherence to them would lead to a manifestly unjust result. Thus, even if the non-
performance of an obligation is fundamental because strict compliance with the
obligation is of the essence of the contract under Article 8:103, a party would not
be permitted to terminate because of a trivial breach of the obligation.
7 M Bridge, “Good faith in commercial contracts”, in R Brownsword, N J Hird & G Howells (eds),
Good Faith in Contract: Concept and Context (1999) (henceforth Brownsword et al, Good Faith),
143.
8 See A F Mason, “Contract, good faith and equitable standards in fair dealing” (2000) 116 LQR 66.
Cf J W Carter & E Peden, “Good faith in Australian contract law” (2003) 19 Journal of Contract
Law 155. For judicious analyses of the current state of development in English law, see J
Stapleton, “Good faith in private law” (1999) 49 CLP 1; R Brownsword, Contract Law: Themes
for the Twenty-First Century (2000), ch 5, and E McKendrick, Contract Law, 6th edn (2005),
264–269.
9 See Comments A and D to Article 1:201 PECL.
good faith 47
On the other hand, Comment H to the same Article notes that good faith
is dependent “to some extent” upon what the parties have agreed. So parties
may agree “that even a technical breach may entitle the aggrieved party to
refuse performance, when, for instance, its agents can ascertain a technical
breach but not whether it is a trifle or not”. There is some tension between
Comments B and H, and it is perhaps a pity that there is nothing in the texts
of the relevant Articles to make the position clearer.
Hugh Beale has argued that the concept of good faith and fair dealing is
used in a variety of inconsistent ways in PECL. While the concept is not of
itself a source for development of the Principles, something more than “not
bad faith” is meant. But under Article 1:106 PECL regard is to be had, not
only to good faith and fair dealing, but also, as we have seen above, to
certainty in contractual relationships and uniformity of application. Article
1:102 PECL may appear to create an over-arching principle and role for good
faith; but, suggests Beale, the many other Articles providing for more specific
controls based on good faith would be unnecessary if Article 1:102 PECL did
have this effect. In general, good faith and fair dealing in PECL appear to
exclude the unreasonable rather than to impose a duty to be reasonable.
They are at their most positive in relation to implied terms (Article 6:102
PECL), with regard to the duty to co-operate (Article 1:202 PECL), and with
regard to invalidity (see e.g. Article 4:107 PECL). When good faith and
reasonableness are juxtaposed, as in Article 1:302 PECL, they seem not to be
very different from each other. There is an overall lack of consistency, and
Beale proposes a tidying-up exercise to clarify what is intended by the
concepts of good faith and dealing in PECL before they become part of the
Common Frame of Reference now proposed by the European Commission.
It should be made explicit that good faith is not an over-arching standard or
principle for the whole of PECL, but is rather a standard used within
particular rules. Good faith should be visibly an excluder principle only (i.e.
merely excluding the unreasonable rather than imposing positive standards
of conduct). Finally, a suitably defined standard of “reasonableness” should
10
be used for the imposition of positive duties.
10 H Beale, “General clauses and specific rules in the Principles of European Contract Law: the
‘good faith’ clause”, in S Grundmann & D Mazeaud (eds), General Clauses and Standards in
European Contract Law – Comparative Law, EC Law and Codification (forthcoming), ch 12. I
am grateful to Professor Beale for letting me see his paper in advance of publication and
discussing it with me. Note that Stapleton (1999) 49 CLP 1 at 8, 10–12, argues that reasonableness
is a more demanding standard than good faith.
Beale’s argument contributes to more general anxieties that may be felt

about the significance of the good faith principle in PECL. Why, for example,
when the House of Lords drew for the first time upon PECL to help in
determining the meaning of the concept of good faith as used in the Unfair
Terms Directive of 1993,11 did their Lordships not find the Principles more
useful? For both Lords Steyn and Hope, PECL seemed merely to confirm
the diversity of the ways in which the concept of good faith is applied in the
various European legal systems, with a range of factors – in particular, the
availability of other doctrines and the scope assigned to them – affecting its
12
reach. Thus the House was free to develop its own understanding of the
13
concept in the case before them. Then again, Eric Clive has said that PECL
might be used as a basis for codifying the Scots law of contract, while also
expressing doubts about whether a general principle of good faith would
14
serve any useful purpose in such a codification.
B. GOOD FAITH IN MIXED LEGAL SYSTEMS GENERALLY

The starting point for the next three sections of this paper is a claim which I
and others have often made over the last few years: that the contract laws of
the world’s uncodified mixed legal systems (in which Common Law and Civil
Law sources, rules, concepts and methods have interacted for long periods)
often show striking parallels with the results of PECL. The particular interest
of this lies in the way the substance of the uncodified mixed systems is
developed by decisions in cases, that is, from the decisions about actual
15
disputes as distinct from academic systematisation. But the picture on good
faith coming out of the uncodified mixed systems turns out to be quite
distinct from the PECL one, although not exactly like that of English law
11 Director-General of Fair Trading v First National Bank [2002] 1 AC 481 at 500, 502. Lord Hope
of Craighead also refers to PECL in his speech in R v Immigration Officer at Prague Airport, ex
parte European Roma Rights Centre [2004] UKHL 55, [2005] 2 WLR 1, para 59.
12 See also Zimmermann & Whittaker, Good Faith, 653–701.
13 Note too that the Law Commissions’ Report on Unfair Terms in Contract (Law Com No 292; Scot
Law Com No 199 (2005)) recommends that the Directive control of good faith should be
transposed into new legislation in the UK as a test of fairness and reasonableness, without any
reference to good faith.
14 Eric Clive, “The Scottish Civil Code project” in H L MacQueen et al, Regional Private Laws and
Codification in Europe (2003) at 93, 95.
15 See e.g. R Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian
Tradition Today (2001) (henceforth Zimmermann, Roman Law), especially at 126–177; H L
MacQueen, Scots Law and the Road to the New Ius Commune (Ius Commune Lectures on
European Private Law, 1, 2000) (also available in the Electronic Journal of Comparative Law, vol
4.4 (Dec 2000), http://www.ejcl.org/ejcl/44/art44–1.html.
good faith 49
either. In neither Scots nor South African contract law is there an active
general principle of good faith. The most recent commentators on the
subject, Fritz Brand and Douglas Brodie, observe that
in both systems the role of good faith is to inform and explain the rules of the law
of contract and, when necessary, to provide the basis for amending these rules. In
neither of the two systems, however, is good faith recognized as an independent or
16
free-floating basis for the setting aside or amendment of a contract.
The same view has been taken even more recently in an obiter dictum of
Lord Hope of Craighead in the House of Lords:
[G]ood faith in Scottish contract law, as in South African law, is generally an
underlying principle of an explanatory and legitimating rather than an active or
creative nature.17
I want to ask what, if any, significance these observations about Scots and
South African law may have for principles of good faith and their possible
European development and application. Do they support general scepticism
about a wide-ranging principle of good faith in any future European contract
law, or indicate a gap in the laws of these mixed systems?
Although this paper will focus most on the uncodified mixed legal systems
(i.e. Scotland and South Africa), good faith in the codified mixed systems
(Louisiana, Quebec and Israel) can also be taken into account. Their codes all
now state an explicit general principle of good faith. But in each case an
interesting history lies behind the present law.
C. THE CODIFIED MIXED SYSTEMS

(1) Louisiana
Article 1759 of the Louisiana Civil Code, which appears in the general
section on obligations, and so is not limited to contracts, is headed “Good
Faith” and states:
Good faith shall govern the conduct of the obligor and the obligee in whatever
pertains to the obligation.
But this Article was only introduced into the Louisiana Code in 1984.
16 F Brand & D Brodie, “Good faith in contract law”, in Zimmermann, Visser & Reid, Mixed Legal
Systems, 116.
17 R v Immigration Officer at Prague Airport, ex parte European Roma Rights Centre [2004] UKHL
55, [2005] 2 WLR 1, para 60. See also Lord Hope of Craighead, “The place of a mixed system in
the Common Law world” (2001) 35 Israel LR 1–23 at 16.
Previously there had been only Article 1901 of the 1870 Code, which had
appeared in virtually the same words in the 1808 Digest of the Civil Laws
(Article 34) and the 1825 Code (Article 1895). Under the heading, “Law for
the parties; performance in good faith”, Article 1901 ran as follows:
Agreements legally entered into have the effect of laws on those who have formed
them. They can not be revoked, unless by mutual consent of the parties, or for
causes acknowledged by law. They must be performed with good faith.
Article 1901 and its predecessors were ultimately derived from the French
Code Civil of 1804, which provided – and provides – in its Article 1134 that,
in addition to being the private law of the parties, contracts must be
performed in good faith.
As well as introducing the general good faith clause in Article 1759, the
1984 revisions of the Louisiana Code transformed the wording but not the
substance of the former Article 1901 into what is now Article 1983:
Law for the parties; performance in good faith
Contracts have the effect of law for the parties and may be dissolved only through
the consent of the parties or on grounds provided by law. Contracts must be
performed in good faith.
The leading commentator on obligations on the Louisiana Civil Code, Saul

Litvinoff, writes as follows about good faith:
Perhaps good faith emerges with more clarity out of a contrast with its opposite.
Thus, if in general terms bad faith consists in the intention of obtaining an unfair
advantage at another’s expense, even if an advantage results for one who acts
without that intention, the lack of such intention constitutes good faith, even if an
advantage results for one who acts without that intention. The duty that the law
imposes upon parties to perform their contracts in good faith is but a consequence
of the more general duty of obligors and obligees to govern their conduct by good
faith in whatever pertains to the obligation (art 1983). The duty to observe good
faith is thus part and parcel of an overriding obligation of good faith that amounts
to a very strong general principle (art 1759). It is however in the field of conven-
tional obligations, that is, those willingly entered by the parties to contracts, where
good faith has been explored and expounded in a livelier and more complex
fashion, perhaps because the overriding nature of the principle of good faith has
only recently been recognized.18
18 S Litvinoff, Louisiana Civil Law Treatise Volume 5: The Law of Obligations, 2nd edn (2001), § 1.8
(second emphasis HLM). Note also § 1.14, and cf A A Levasseur, Louisiana Law of Obligations in
General: A Précis (1988), 28–29 (“an inductive reasoning led to the inclusion of LSA-CC Art
1759. From a series of extant Code articles, a general principle was extracted and placed in such
a manner as to govern all obligations. … All in all, the novelty and the merit of [Art 1759] reside[s]
only in the formal existence [it] vest[s] on the article [itself] whereas [its] substance has long been
of the essence of the law of obligations”).
good faith 51
Litvinoff has more recently expounded the potential significance of the over-
riding obligation of good faith in an article in the Tulane Law Review which,
however, draws more heavily on comparative law from Europe and else-
where in the USA, than on actual Louisiana case law.19 He shows that good
faith gives rise to duties not expressly contemplated by parties in their agree-
ments, and is not limited to performance. The article suggests that the juris-
prudence of good faith is not very well developed in Louisiana, save where its
good faith in performance requirement can be elaborated upon from the
extensive case law on the equivalent provision in the Uniform Commercial
Code, §1–203. Litvinoff argues that good faith as well as an express codal
20
provision recognising detrimental reliance as a source of obligation allows
21
the court to remedy culpa in contrahendo; and that it may enable the courts
to deal with impracticability as well as impossibility, and to extend the scope
of lesion. Good faith cannot be confined to the opposite of bad faith, or be
presumed in the absence of bad faith; and it could regulate the exercise of
contractual discretions. Litvinoff concludes, still looking to the future: “[A]
wider judicial freedom to revise contracts may be the ultimate product of the
twentieth-century expansion of the requirement of good faith.”22
The gate is therefore open to a much wider use of an overriding principle
of good faith, but the Louisiana courts have not yet passed through. The
concept is frequently referred to in the jurisprudence but has seldom been
the sole or pre-eminent basis for a judicial decision. There is no sign yet of a
decision developing a doctrine akin to culpa in contrahendo. Typically it is
Article 1983 (contract to be performed in good faith) which is used or cited in
23
the cases, while references to the more general, new, Article 1759 seem
24
often to be in conjunction with citations of Article 1983. In Badalamenti v
25 26
Jefferson Guaranty Bank and Nicholas v Allstate Insurance Co it was held
that application of Article 1759 could not affect the meaning of a clear and
19 S Litvinoff, “Good faith” (1997) 71 Tulane LR 1645.

20 Article 1967 Louisiana Civil Code.
21 See also on this S Herman, “Detrimental reliance in Louisiana law – past, present, and future (?):
the code drafter’s perspective” (1984) 58 Tulane LR 707 at 744–747.
22 Litvinoff (1997) 71 Tulane LR 1645 at 1674.
23 See e.g. MKM LLC v Rebstock Marine Transportation Inc 776 So 2d 460 (2000); Levin v May 887
So 2d 497 (2004).
24 See e.g. the cases cited in the next three footnotes, and King v Parish National Bank 885 So 2d 540
(2004) (finding that the requirement of good faith could not render enforceable an oral credit
agreement where statute required such agreements to be in writing; see also on this Aaron v
Landcraft Inc 2005 La App LEXIS 616, which, however, refers only to Article 1759).
25 759 So 2d 274 (2000) (bank’s duty of disclosure to borrowers providing pledge).
26 739 So 2d 830 (1999) (malicious termination of “at-will” employment contract).
unambiguous contract. But in another case where the contract was either
silent or open-ended, it fell to be interpreted in accordance with good faith.27
Perhaps more remarkably, in Bieber-Guillory v Aswell28 the Court of Appeal,
Third Circuit, remanded for trial a reconventional claim that what were
alleged to be excessive charges for services rendered, were contrary to good
faith under Article 1759.
(2) Quebec
Like its Louisiana forebear, the Civil Code of Lower Canada 1866 drew upon
the French Code of 1804 but, “enacted at a time when economic liberalism
29
prevailed”, contained no provision on good faith. Instead it confined itself
to allowing the addition to a contract, beyond what was express in it, “what is
incident to it according to its nature and in conformity with usage, equity or
law” (Article 1024). It is in the new Quebec Civil Code 1992 (implemented in
1994) that we find the following articles:
Article 6
Every person is bound to exercise his civil rights in good faith.
Article 1375
The parties [to a contract] shall conduct themselves in good faith both at the time
the obligation is created and at the time it is performed or extinguished.
Article 7 also prohibits the exercise of rights “in an excessive and unreason-
able manner contrary to the requirements of good faith”. But under Article
2805, restating Article 2202 of the old code, good faith is always presumed,
unless the law expressly requires that it be proved.
The leading Quebec jurist, Paul Crépeau, called the new provisions on
good faith “a spectacular evolution of the civil law”, resulting from “the fact
that Quebec has joined an international trend that is striving to bring a new
30
sense of morality to contract law”. He says that good faith was first revived
in Quebec by “a strong line of cases, originating mostly from the Supreme
Court of Canada, [giving] new life to the long-forgotten term ‘equity’ in article
1024 of the Civil Code of Lower Canada … in allowing good faith to play, as
the source of implied obligations, a fundamental role in the performance of
27 Kite v Gus Kaplan Inc 747 So 2d 503 (1999) (landlord’s right to change premises leased to tenant
limited to providing space reasonably comparable with previous premises).
28 723 So 2d 1145 (1998).
29 Paul-A Crépeau, The UNIDROIT Principles and the Civil Code of Québec: Shared Values (1998)
(henceforth Crépeau, The UNIDROIT Principles and the Civil Code of Québec), 49.
30 Crépeau, The UNIDROIT Principles and the Civil Code of Québec, 53.
good faith 53
contracts.”31 The legislature in Article 1375 has opened up the possibility of

extending good faith to many more aspects of contract, without spelling out
much in the way of detail; Crépeau suggests that good faith has a role in each
case where the Code does not include a specific rule directed to a precise
situation. “One must hope”, he says, “that the courts will take up the mandate
to recognize the variety of precontractual, contractual and even ‘post-
contractual’ instances in which good faith should play a predominant role in
32
the regulation of legal relations.”
A search of recent Quebec decisions on the Canadian Legal Information
33
Institute website and in the Annuaire de Jurisprudence et de doctrine du
Québec suggests that the mandate offered by the concept of good faith has
indeed been taken up in the courts, with Articles 6, 7 and 1375 often cited
together, and resultant duties of disclosure, co-operation and loyalty being
highlighted, especially in the context of contractual performance and
termination. Because the principle of good faith permeates the whole of the
law of obligations, the courts can deal with breach of the duty by way of any of
the sanctions known to the civil law. Good faith is also closely linked to other
concepts and techniques available in the Code, such as equity (Article 1434),
or the regulation of abusive and penal clauses (Articles 1437, 1623).34 But the
presumption of good faith means that the concept functions mainly to
exclude bad faith rather than to impose new standards of behaviour on con-
tracting parties; for example, it has not been used to deal with cases of
31 Crépeau, The UNIDROIT Principles and the Civil Code of Québec, 52. The cases cited are:
National Bank of Canada v Soucisse [1981] 2 SCR 339 (bank’s duty of full disclosure to sureties);
Bank of Montreal v Kuet Leong Ng [1989] 2 SCR 429 (employee’s duty of good faith to employer);
Houle v National Bank of Canada [1990] 3 SCR 122 (bank’s duty of good faith to customer); Bank
of Montreal v Bail Ltd [1992] 2 SCR 554 (obligation of information between contracting parties).
To the list might now be added CIBC Mortgage Corp v Vasquez [2002] 3 SCR 168 and Banque
national de Paris (Canada) v 165836 Canada Inc [2004] 2 SCR 45 (both Quebec cases, kindly
brought to my attention by Professor Madeleine Cantin-Cumyn).
32 Crépeau, The UNIDROIT Principles and the Civil Code of Québec, 57. For the lack of a culpa in
contrahendo doctrine before the 1992 Code, see P Legrand, “Quebec”, in E H Hondius (ed), Pre-
Contractual Liability: Reports to the XIIIth Congress of the International Academy of
Comparative Law (1991), 273–296, and B Lefebvre, “La bonne foi dans la formation du contrat”
(1992) 37 McGill LJ 1053 at 1056–1058.
33 The website is http://www.canlii.org/.
34 See J-L Baudouin & P-G Jobin, Les Obligations, 5th edn (1998), paras 86–123 (a 6th edn is
imminent); (1996) 26(2) Revue de droit de l’Université de Sherbrooke (special issue on the subject
of good faith); B Lefebvre, La bonne foi dans la formation des contrats (1998); J-L Baudouin,
“Justice et équilibre: la nouvelle moralité contractuelle du droit civil québécois”, in Etudes
offertes á Jacques Ghestin: le contrat au début du XXIe siècle (2001), 29–44; D Lluelles, “La
bonne foi dans l’exécution des contrats et la problématique des sanctions” (2004) 83 Canadian
Bar Review 181. I owe several of these references to the kindness of Professor Madeleine Cantin-
Cumyn and Judge Jean-Louis Baudouin.
hardship (or imprévision).35 Although commentators are clear that the duty
of good faith entails potential liability (including damages liability) for bad
faith in pre-contractual negotiations,36 there has yet to be a judicial decision
to this effect in Quebec.37 In a case coming from Ontario, and therefore reflec-
ting the Canadian Common Law tradition, the Supreme Court of Canada has
denied the existence of a tortious duty of care in contract negotiations.38 But
there seems no reason to suppose that this decision will have any impact on
developments in Quebec.
(3) Israel
The Israeli Contracts (General Part) Law 1973 provides that “An obligation
or right arising out of a contract shall be fulfilled or exercised in customary
39
manner and in good faith.” There is also a specific provision for culpa in
contrahendo: “In negotiating a contract, a person shall act in customary
40
manner and in good faith.” The elevation of the duty to act in good faith to
the rank of an overriding principle in the formation and performance of
contracts nicely illustrates the character of Israel’s mixity – that of a Common
Law system being Civilianised by a group of jurists who, in the first genera-
tion after the Second World War, “were predominantly Jewish jurists who
had been trained in continental Europe (particularly Germany, Austria and
Italy) and who had fled from Nazi tyranny to Mandatory Palestine in the 1930s.
Despite their experiences in Fascist-dominated Europe, these jurists retained
a strong affinity for continental private law.”41 In the thirty years of the good
35 For discussion of the Article 2805 presumption see contributions by Lefebvre (at 329–335) and
Karim (429–454) in (1996) 26(2) Revue de droit de l’Université de Sherbrooke.
36 See, in addition to other works cited in note 34, Lefebvre, La bonne foi dans la formation des
contrats, 111–163; V Karim, “La règle de la bonne foi prévue dans l’article 1375 du Code civil du
Québec: sa portée et les sanctions qui en découlent” (2000) 41 Les Cahiers de Droit 435, and M
A Grégoire, “Les sanctions de l’obligation de bonne foi lors de la formation et de l’elaboration du
contrat” (2002) 104 Revue du Notariat 173.
37 There have been cases where the courts have recognised the possibility of liability for abuse of the
right to withdraw from negotiations but found it not to apply on the particular facts. See e.g.
Jolicoeur v Rainville, JE 2000–201, and Compagnie France Film Inc v Imax Corporation, JE
2002–5, both CAQ. I am grateful to Professor Daniel Jutras for drawing my attention to these cases.
38 Martel Building Ltd v Canada (2000) 12 SCR 860, discussed in P Giliker, “A role for tort in pre-
contractual negotiations? An examination of English, French and Canadian law” (2003) 52 ICLQ
969. Note that the court (at para 73) expressly declined to comment on the existence of a duty of
good faith in pre-contractual negotiations.
39 Section 39.
40 Section 12(a).
41 S Goldstein in V V Palmer, Mixed Jurisdictions Worldwide: The Third Legal Family (2001), 450
(see also for more detail S Goldstein, “Israel: creating a new legal system from different sources
by jurists of different backgrounds”, in E OÚru…cu…, E Attwooll & S Coyle (eds), Studies in Legal
Systems: Mixed and Mixing (1996), 147).
good faith 55
faith provisions in Israel, it is clear that the courts have taken a vigorous
approach to the introduction of equity in contract law by way of good faith,
and that in particular the provision on pre-contractual liability has been much
used.42 Nili Cohen however observes:
The operation of the duty of good faith in Israeli case law is actually translated to
categories of bad faith. The duty of good faith serves as an ‘excluder’ mechanism:
it does not provide for guidelines for positive conduct of good faith, rather it
categorises negative conduct which is incompatible with the standard of good
43
faith.
D. UNCODIFIED MIXED SYSTEMS

(1) Scotland
In contrast to the present state of Louisiana, Quebec and Israeli law, there
can be no doubt that, if there is a general principle of good faith in Scots
contract law, it has been almost entirely latent and inarticulate until now.
Indeed, there are judicial dicta against such a principle, at least insofar as it
might connote a duty to take another’s interests into account, or a power to
44
strike down a bargain as unfair. Professor McBryde has written in the
leading Scottish text:
It is clear that certain rights under a contract cannot be acquired by a person who
is in bad faith. That is what centuries of case law [has] established. It would be a
different proposition to require a person to show that they were in good faith. In
entering into a contract knowledge of a contracting party has had relevance in the
context of fraud or misrepresentation or error, but otherwise the tendency has been
to construe the contract, not to apply a general concept of good faith. In the context
of breach of contract the generally accepted position is that bona fides is not a
defence to a claim for breach of a mercantile contract. A bad motive in termin-
ation of a contract is irrelevant. Damages are not increased because the contract
breaker was in bad faith, although in exceptional cases the law may be changing.
Nevertheless if a concept of bad faith were to develop it might be possible to
42 See S Renner, “Israeli contract law – recent trends and evolution” (1995) 29 Israel LR 360; G
Shalev, “Israel”, in E H Hondius, Pre-Contractual Liability: Reports to the XIIIth Congress of the
International Academy of Comparative Law (1991), 179–194; A M Rabello, “Culpa in contra-
hendo and good faith in the formation of contract: precontractual liability in Israeli law”, in Rabello
(ed), Essays on European Law and Israel (1996); N Cohen, “The effect of the duty of good faith
on a previously common law system: the experience of Israeli law”, in Brownsword et al, Good Faith,
189–212. See also Cohen’s “Pre-contractual duties: two freedoms and the contract to negotiate”,
in J Beatson & D Friedmann (eds), Good Faith and Fault in Contract Law (1995), 25–56.
43 Cohen, in Brownsword et al, Good Faith at 209.
44 See for a collection of such dicta J M Thomson, “Good faith in contracting: a sceptical view”, in
Forte, Good Faith, 64–65, 68–69, 70–71. See also Thomson, “Judicial control of unfair contract
terms”, in Reid & Zimmermann, History, vol 2, 157–174.
attack any underhand dealing. In effect the law of contract might have come full
circle to the time before the development of the doctrines of facility and circum-
45
vention, undue influence and fraudulent or unfair preferences in bankruptcy.
46
But in Smith v Bank of Scotland, decided by the House of Lords in 1997,
the leading speech of Lord Clyde referred to “the broad principle in the field
of contract law of fair dealing in good faith”.47 He then used this principle to
avoid a personal guarantee, applying in Scots law the protection of a
guarantor against unfair pressure (undue influence or misrepresentation)
resulting from close personal relationship (marriage) with the person whose
debts were being guaranteed; a protection created earlier in English law by
the House of Lords in Barclays Bank plc v O’Brien.48 As a result, the creditor
in a guarantee is bound to take steps to ensure that the guarantor is not
improperly affected by conduct of the person whose debts are to be
49
guaranteed. Good faith was used to this end in Smith because the equity of
constructive notice and the doctrine of presumed undue influence deployed
50
in O’Brien is said to be unknown to Scots law. In subsequent decisions, the
Scottish courts have preferred to continue to use the broad principle of good
faith rather than adopt the detailed guidance for creditors developed in
51
English law by the House of Lords in Royal Bank of Scotland v Etridge. The
preference for a broad principled approach over “matters of ritual, the blind
52
performance of which will secure the avoidance of doom”, is probably to be
explained by a reluctance to find the bank’s omission of one of the many steps
set out in Etridge enough of itself to avoid the guarantee.53
45 McBryde, Contract, para 1-33. Compare the rather different analysis in H L MacQueen, “Good
faith in the Scots law of contract: an undisclosed principle?”, in Forte, Good Faith at 13–17. See
also T M Taylor, “Bona et mala fides”, in Encyclopaedia of the Laws of Scotland, vol 2 (1927); and
two works of T B Smith: British Justice: The Scottish Contribution (1961), 177–179, and Short
Commentary on the Laws of Scotland (1962), 297–298, 835–837.
46 1997 SC (HL) 111.
47 Per Lord Clyde at 121B–C. A similar dictum is found in the earlier case of Trade Development
Bank v David W Haig (Bellshill) Ltd 1983 SLT 510 at 517 per Lord President Emslie.
48 [1994] 1 AC 180.
49 Note that the same result is reached in Article 4:111 PECL; see further the contribution to this
volume of Professor du Plessis (171–174).
50 See G J Junor, “The dust settling: Smith v Bank of Scotland” 1999 JR 67; S M Eden, “Cautionary
tales – the continued development of Smith v Bank of Scotland” (2003) 7 Edinburgh LR 107;
Eden, “More cautionary tales” (2004) 8 Edinburgh LR 276.
51 [2002] 2 AC 773.
52 Etridge at 817, per Lord Clyde (para 95).
53 Clydesdale Bank v Black 2002 SC 555 (where the guarantor argued that the bank had fallen foul
of the Etridge requirements by not holding a meeting with her outwith her husband’s presence at
which they warned her about the consequences of signing the document and advised her to
obtain independent legal advice; but she had in fact taken such advice, the content of which she
did not disclose in her pleadings).
good faith 57
Lord Clyde based his assertion about good faith in contract, not upon any
historical or comparative analysis of Scots law, but upon the authority of com-
paratively modern property law cases dealing with the problem of “double
sales”.54 The aptness of this for contract law is doubtful, since good faith in
property is a much more subjective matter than in contract.55 But there is in
fact some good old authority for general contractual obligations of good faith
in Scots law. The Civilian heritage meant that certain contracts (sale being
the prime example) were always bona fide, but this was increasingly general-
ised to all contracts in the eighteenth and early nineteenth centuries, by
56
authoritative writers such as Bankton, Kames and Bell. Bona fides was
57
actively deployed in judicial decisions of the period as well. In Whitson v
58
Neilson & Co, for example, N ordered 200 tons of flax, to be obtained from
Riga and imported in two ships by the seller W, for delivery in the following
July and August. The first ship arrived back on 23 August, but N declined to
take delivery until the full quantity was available. The second ship arrived on
29 August, but the state of the tides prevented it entering harbour before 2
September. W told N that he would begin unloading the second ship by way
of lighters, starting on 30 August; but N continued to refuse to take delivery,
unless the whole quantity could be delivered before the end of August. In the
end, the flax was delivered on 1 September but N stated that since the
original contract was now terminated they would pay only the current market
price, which was £700 less than the contract one. W, who was insolvent,
raised an action for the balance, to which the Court of Session held he was
entitled. The contract was to be construed bona fide, and the seller had
offered sufficient bona fide implement. “If we were compelled to go to the
utmost strictness in bona fide contracts,” said Lord Alloway, in an interesting
inversion of modern arguments against good faith in contract, “I do not know
59
where there would be an end of it.” Lord Glenlee, who was worried about
taking “more liberties with the terms of mercantile contracts than it [is] safe
54 Rodger (Builders) Ltd v Fawdry 1950 SC 483; Trade Development Bank v David W Haig
(Bellshill) Ltd 1983 SLT 510.
55 This observation also holds good for Professor McBryde’s observation (quoted in text accompany-
ing note 45 above) that certain rights cannot be acquired under a contract by a party in bad faith.
56 See A D M Forte, “Good faith and utmost good faith”, in Forte, Good Faith at 77–79, 96–97; see
also at 13 n 32 (MacQueen).
57 See, in addition to the case cited in the next note, Smith v Bank of Scotland (1829) 7 S 244.
58 (1828) 6 S 579. The case was brought to my attention by the Aberdeen PhD thesis of Mohammed
Al Othman, of which I was external examiner in January 2005. For the declining authority of the
case later in the nineteenth century, see McBryde, Contract, 1st edn (1987), 331 n 74 (not in the
2nd edition); see also Gloag, Contract, 283 n 2.
59 (1828) 6 S 579 at 584.
to do”,60 nonetheless thought the contract did not stipulate for delivery to be
complete before the end of August. Bona fides meant that ambiguous con-
tracts were given common sense constructions. Lord Pitmilly looked for the
“fair meaning”61 of the bargain; and the Lord Justice-Clerk could “see no
authority for holding, that if there was a hundredweight to deliver at twelve
o’clock at night of the 31st, the purchasers could get quit of the bargain.”62
The contract in this case was one of sale, and so one of bona fides in the
Civilian tradition; but nonetheless the case shows the concept of good faith
being deployed in an active way in a commercial context – termination of
contract for literal non-performance – which today some at least might see as
63
controversial.
It was probably later nineteenth-century will and laissez faire theories that
sterilised any potential good faith might have had to become an active
64
doctrine in Scots law. But cases and writers did develop concepts of terms to
be applied generally in all types of contract unless there was express contrary
provision or specific implication in certain kinds of contract. For example, an
1881 House of Lords authority is still cited for a duty on contracting parties to
do all that is necessary to be done on their part to ensure that the contract is
carried out.65 And writers have accepted such implications as requirements
that contracts be carried out within a reasonable time; that one party does not
do anything to prevent completion of performance by the other or otherwise
derogate from the contract; and that discretionary powers under a contract
66
are exercised reasonably. The doctrine of undue influence, which was first
67
borrowed (with some discrimination) from English law in 1879, also looks
like a product of good faith under another name.
60 At 584.
61 At 585.
62 At 586. The Lord Justice-Clerk, lapsing into anti-semitism, adds (at 586): “To hold this would be
a judaical construction which should not be introduced into bona fide contracts.”
63 Compare the Privy Council’s decision in Union Eagle Ltd v Golden Achievement Ltd [1997] AC
514, where the contract was held terminable when a purchaser tendered payment 10 minutes
after the contractually stipulated time. A deposit was also forfeited. See further E McKendrick,
“Good faith: a matter of principle?”, in Forte, Good Faith, 56–58, and Bridge, in Brownsword et
al, Good Faith, 150–162 (discussing termination in commodities contracts under English law).
See also Zimmermann & Whittaker, Good Faith, discussions of case nos 6, 7, 8, and 24.
64 See Thomson, in Forte, Good Faith at 64–69, 70–71; S C Styles, “Good faith: a principled matter”,
also in Forte, Good Faith at 165–166.
65 Mackay v Dick and Stevenson (1881) 8 R (HL) 37 at 40 per Lord Blackburn. Gloag, Contract, 280;
McBryde, Contract, 483; SME, vol 15, paras 6, 714 (where this is summarised as a duty to co-operate).
66 See MacQueen, in Forte, Good Faith at 16, and MacQueen & Thomson, Contract, para 3.34, for
the authorities. For further comment on discretionary powers, mainly in the employment
context, see Brand & Brodie, in Zimmermann, Visser & Reid, Mixed Legal Systems at 109–112.
67 Gray v Binny (1879) 7 R 332.
good faith 59
It remains to be seen, however, whether twenty-first century courts, also

encouraged by the use of the principle in EU-inspired legislation such as that
on unfair terms in consumer contracts,68 will take good faith beyond its present
realm of personal guarantees into other areas of contemporary contract law.
So far, there has not been much sign of that. In Macari v Celtic Football and
Athletic Club Ltd,69 a leading case on the mutual obligations of trust and
confidence (or good faith?) in employment contracts, it was argued that the
employer’s bad faith in seeking to undermine the employee’s position
disabled the former from eventually terminating the latter’s contract. But the
court held that the employer’s conduct, and the final dismissal, had been
justified and reasonable in all the circumstances, and therefore it never really
reached the legal question of the relevance or otherwise of bad motive in
70
cases of termination of contract for breach. Possibly, however, good faith
might explain why the employee’s right to withhold performance in respect of
his employer’s undoubted breach of contract was denied, since he was picking
71
and choosing amongst his obligations as to which ones he would perform.
72
Walford v Miles, which denied the existence of obligations to negotiate in
good faith in English law, was not applied by Lord Hamilton in McCall’s
Entertainments v South Ayrshire Council;73 but the relevant aspect of
Walford was not so much the good faith point as the question of the
enforceability of agreements to negotiate. In McCall’s Entertainments an
agreement to negotiate a sale under an option in a lease was held to be
enforceable because there was provision for an arbiter to fix the price if the
74
parties could not; good faith was not in issue. And in W S Karoulias SA v
75
Drambuie Liqueur Co Ltd, a case involving a Scottish company and its
Greek distributor in which questions arose about whether or not negotiations
had concluded a new contract between the parties, neither the arguments of
counsel nor the opinion of Lord Clarke took account of the possibility that
good faith in negotiations might mean that there was some liability regardless
of contract. Indeed, Lord Clarke said: “[W]hat the court is looking for is
68 Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083), implementing Directive
of 1993.
69 1999 SC 628.
70 Contrary to Professor McBryde’s comment about its irrelevance, quoted above, text accompany-
ing note 45.
71 J M Thomson, “An unsuitable case for suspension?” (1999) 3 Edinburgh LR 394.
72 [1992] 2 AC 128.
73 1998 SLT 1403.
74 Although it might well have been: see the sequel to the case after a proof had been held, McCall’s
Entertainments v South Ayrshire Council (No 2) 1998 SLT 1423.
75 2004 GWD 31–638.
whether or not the parties have reached finality in their agreement. The
question is whether or not the parties have passed beyond negotiation and
have a concluded agreement.”76 After proof Lord Clarke affirmed that there
was indeed no contract, albeit that Drambuie had been guilty of “stringing
along” Karoulias while intending to contract with a third party.77 Neither
counsel nor the judge argued that there was liability in Scots law comparable
to that which Article 2:301(2) PECL would have imposed on such facts.
For the time being, at least, good faith remains at best an underlying
principle of Scots contract law, which “enables the identification and solution
of problems which the existing rules do not, or seem unable to reach. … The
principle also provides a basis upon which existing rules inconsistent with it
78
can be criticised and reformed, whether judicially or by legislation.” I have
suggested in particular that good faith would help us to make sense of an
inchoate culpa in contrahendo doctrine to be found in a series of cases
79
stretching back to Walker v Milne (the “Melville Monument” case) in 1823,
and also perhaps enable the courts to develop the precedents a little way
beyond the very narrow scope they currently receive in the courts.80 But I
have also argued that while good faith underlies or explains much of our
contract law, it has not been necessary to use it actively to fill gaps in the law;
and given the extent of existing statutory protection for weaker contracting
parties, I should be hesitant about its use to add yet further equity into that
particular branch of contract law.
In December 2004 news broke of an action raised against the Scottish
Parliamentary Corporate Body by one of the unsuccessful tenderers for the
81
building of the Scottish Parliament. The gist of the claim is that the tenderer
was wrongfully excluded from the tender competition in its final stages before
the award of the contract. Part of the background is also that the ultimately
76 At para 33. Note also Robertson Group (Construction) Ltd v Amey-Miller (Edinburgh) Joint
Venture [2005] CSOH 60, in which a pre-contractual letter of intent was held to be “a contract of
an essentially temporary nature”, accepted by commencement of work in accordance with the
letter’s instructions (para 1).
77 2005 SLT 813.
78 MacQueen, in Forte, Good Faith at 18, 19.
79 (1823) 2 S 379. See also the comment of J Blackie, “Good faith and the doctrine of personal bar”
(in Forte, Good Faith) on Walker and the line of nineteenth-century cases descending therefrom:
“These cases (and others later) are so full of references to good faith and bad faith that it is clear
beyond a peradventure that this is what they are about” (at 155).
80 MacQueen, in Forte, Good Faith at 22–33. For the current position see Dawson International plc
v Coats Paton plc 1988 SLT 854. For comparative source material from Europe see H Beale, A
Hartkamp, H Kötz & D Tallon, Cases, Materials and Text on Contract Law (2002), ch 2.2.
81 See BBC News Online 22 Dec 2004 (http://news.bbc.co.uk/1/hi/scotland/4118801.stm) and 2 Feb
2005 (http://news.bbc.co.uk/1/hi/scotland/4229151.stm).
good faith 61
successful tenderer had been first excluded, and then, having adjusted its tender,
readmitted to the competition at the behest of the civil servant running the
project at that stage.82 The claim seems to be based upon possible breaches of
European Union public procurement rules rather than upon any common
law notions of good faith or culpa in contrahendo.83 The advantage the public
procurement rules may offer over any common law liability is the recovery of
damages based upon loss of the contract profit, as distinct from the reimburse-
ment of wasted or reliance expenditure which is as far as the previous
Scottish cases go by way of remedy. It thus does not seem very likely that the
Scottish Parliament case will provide an opportunity for belated recognition
of good faith duties in pre-contractual negotiations. Indeed, it looks as
though the first issue to be addressed is that of prescription, since the alleged
breaches of duty took place more than five years before the action was raised
84
in December 2004. On the other hand, the public procurement rules demon-
strate a recognition of the validity of pre-contractual obligations in at least
some cases; and while public body contracts may be particularly strong cases
for insisting on the existence of such obligations,85 it does not follow that the
private, and in particular the commercial, sector should be wholly free of them.
82 For the factual background so far as publicly known at the time the action was raised, see the Final
Report of the Holyrood Inquiry as conducted by Lord Fraser of Carmyllie QC (Sept 2004,
accessible at http://www.holyroodinquiry.org/FINAL_report/report.htm), ch 7. Note in particular
Lord Fraser’s comment in his conclusions that “[i]t does however appear to me, on elementary
considerations of fairness as between competing tenderers, that if one tenderer was effectively
permitted to change a very material aspect of the financial basis upon which its tender was
submitted that is an opportunity which should have been afforded to the others.”
83 For the procurement rules, see SME, vol 3, para 17 (note also Cumulative Service and Service
Update); Chitty on Contracts, 29th edn (2004), vol I, ch 10(7). Note too that on 16 March 2005
the European Commission announced an investigation of possible breaches of the procurement
rules: see its press release at http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/05/
314&format=HTML&aged=0&language=EN&guiLanguage=en.
84 There is also an issue about whether the SPCB is the correct, or the only, possible defender, given
that the contract was awarded by the Scottish Office before the SPCB came into existence. But
see Scotland Act 1998, s 23.
85 See the comments of Finn J in Hughes Aircraft Systems Ltd v Airservices Australia (1997) 146
ALR 1 at 37–42. I cannot here resist also quoting a splendid letter to the Scotsman newspaper by
Mr Ian Arnott, published on 2 Dec 2004 under the heading, “Building on Good Faith”, in which
he commented critically on the findings of the Civil Service Commissioner that the civil servants
involved in the Scottish Parliament building project were blameless since all their decisions were
taken in good faith. Mr Arnott said: “There may be no universal definition of what constitutes
good faith, but there is a general understanding of what it means, and the commissioner’s concept
seems to be elastic to an unusual degree and certainly questionable.” Amongst other subsequent
scathing remarks, Mr Arnott added, with particular pertinence to the present discussion: “Was it
good faith that bent the rules of tendering to allow the reintroduction and appointment of a
previously rejected firm of contract managers?” Perhaps in due course the progress of the Court
of Session action will give Mr Arnott a greater sense of justice being seen to be done.
(2) South Africa

As already noted above, observations about good faith as an underlying rather
than an active principle of contract law hold good for the main other un-
codified mixed jurisdiction, South Africa.86 In a study of good faith published
in 1999, Dale Hutchison concluded:
[I]t seems reasonably clear that South African law has no general doctrine of good
faith. By that I mean that good faith is not an independent or free-floating
principle that the courts can employ directly to justify intervention in contractual
relationships on the grounds of unreasonableness or unfairness. … [G]ood faith
may be regarded as an ethical value or controlling principle, based on community
standards of decency and fairness, that underlies and informs the substantive law
of contract. It finds expression in various technical rules and doctrines, defines
their form, content and field of application and provides them with a moral and
theoretical foundation. Good faith thus has a creative, a controlling and a
legitimating or explanatory function. It is not, however, the only value or principle
that underlies the law of contract. … [T]he influence of good faith in the law of
contract is merely of an indirect nature, in that the concept is usually if not always
mediated by some other, more technical doctrinal device. Thus, for example,
while good faith does not empower a court directly to supplement the terms of a
contract, or to limit their operation, it might in appropriate cases enable the court
to achieve these same results indirectly, through the use of devices such as implied
87
terms and the public policy rule.
In South Africa, however, the existence and scope of open-ended norms such
as good faith in contract law seems to be more hotly disputed than in Scot-
88
land. As Hutchison noted, there were one or two judges prepared to go
further than his conclusion. In Eerste Nasionale Bank van Suidelike Afrika
89
Bpk v Saayman NO, the facts of which were comparable in some respects to
the O’Brien, Smith and Etridge cases described earlier, a sick old woman
stood as surety to a bank for the debts of her son. The woman’s daughter was
subsequently appointed her curatrix and obtained an order from the court
that the suretyship was unenforceable. The majority decided the case on the
basis of the woman’s lack of capacity, but Olivier JA founded his concurring
decision squarely on a doctrine of good faith. In Mort NO v Henry Shields-
86 See R Zimmermann, “Good faith and equity”, in Zimmermann & Visser, Southern Cross, esp at
239–255.
87 D Hutchison, “Good faith in the South African law of contract”, in Brownsword et al, Good Faith,
213–242 at 229–231.
88 See e.g. Zimmermann, in Zimmermann & Visser, Southern Cross; A Cockrell, “Second-guessing
the exercise of contractual power on rationality grounds” [1997] Acta Juridica 26; J Lewis,
“Fairness in South African contract law” (2003) 120 SALJ 330; G Lubbe, “Taking fundamental
rights seriously: the Bill of Rights and its implications for the development of contract law” (2004)
121 SALJ 395.
89 1997 (4) SA 302 (SCA).
good faith 63
Chiat90 Davis J argued that the constitutional obligation to develop the

common law in accordance with the rights of equality and dignity required
the courts to establish an active doctrine of good faith; a view which prompted
Hutchison to comment:
[T]o reach directly for the baton of good faith would be to confess to a want of
technical expertise or creativity. Palm-tree justice no doubt has its virtues, but as
91
lawyers we should adhere to the ideal of justice according to law.
Eventually, however, the Supreme Court of Appeal (SCA) expressly followed

Hutchison when confirming twice in 200292 that the 1996 Constitution did
not require the development of a good faith doctrine in contract law. In
Brisley v Drotsky93 the SCA held that the common law Shifren doctrine – an
entrenchment clause in a contract providing that all amendments to the
contract had to comply with specified formalities is binding94 – remained in
force, even although the contract in question (a lease) and the clause were
embodied in a standard form purchased by the landlord in a shop, and were
95
never the subject of negotiation, disclosure or legal advice between the parties.
The landlord was seeking to evict the tenant for breaches of the lease condi-
tions, although previously he had taken no action in response to similar breaches
by the tenant and might therefore, without the Shifren clause, have been
taken to have accepted an implicit variation of the lease. The court rejected
an argument that the principle of good faith could prevent invocation of the
Shifren clause because it was in all the circumstances unreasonable, unfair
and contrary to good faith. The judgment of Olivier JA in Eerste Nasionale
Bank was disapproved. The court accepted Dale Hutchison’s understanding
of the legitimating and explanatory role of good faith, but observed that this
did not override other important considerations such as freedom of contract.
The court also did not take Hutchison’s preferred, rule-based, route – “limiting
the Shifren principle, possibly by recognizing exceptional circumstances
where the principle will not apply, certainly by employing and developing
concepts such as waiver, estoppel and pactum de non petendo”.96
90 2001 (1) SA 464 (C) at 474–475.

91 “Non-variation clauses in contract: any escape from the Shifren straitjacket?” (2001) 118 SALJ
720.
92 Brisley v Drotsky 2002 (4) SA 1 (SCA) at paras 33–36; Afrox Healthcare Bpk v Strydom 2002 (6)
SA 21 (SCA), para 18.
93 2002 (4) SA 1 (SCA).
94 SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren 1964 (4) SA 760 (A).
95 On these facts in Scotland, it is submitted, the clause would have been subjected to the fairness
and reasonableness tests of the Unfair Contract Terms Act 1977, s 17.
96 Hutchison (2001) 118 SALJ 720 at 745.
In Afrox Healthcare v Strydom,97 an exclusion clause in a hospital treat-

ment contract was challenged as contrary to public policy and good faith by a
patient who had suffered irreparable harm in a hospital operation as a result
of a nurse’s negligence in dressing his wounds. The challenge was dismissed,
the court finding that the contractual relationship was not an unequal one,
that good faith was not in itself a ground for invalidating contracts,98 and that
the clause did not promote negligent conduct contrary to the respondent’s
constitutional right of access to health care; other factors, such as the hospital’s
need to maintain its professional reputation, would ensure promotion of the
right to health. Moreover freedom of contract had to be taken into account.
The Supreme Court of Appeal has been criticised for being insufficiently
99
radical in its approach to contractual freedom under the Constitution. But I
have some sympathy with the judges, at least in the Afrox case, where what
was really being sought was a regime for control of exclusion clauses –
something peculiarly apt for legislative rather than judicial innovation. Even
more so where, as in South Africa, the legislature has not yet chosen to act
upon a recent Law Commission report on the subject,100 and it is clear that
there are significantly divided counsels on the subject. It is one thing to use
an existing doctrine of good faith to “radiate” human right principles, as
happens in Germany and Israel;101 quite another, I would suggest, to invent such
an open-ended doctrine as a human right or as required by other human rights.
Having said that, there was perhaps one other avenue open to the South
African judges with regard to the particular kind of exclusion clause in question:
viz, an exclusion of liability for death or personal injury. That was the active
public policy doctrine which has evolved in South African contract law since
the 1980s. The doctrine has been used to attack unacceptable contract terms
97 2002 (6) SA 21 (SCA).

98 See also on this BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C): bank able to enforce surety
against father-in-law of principal debtor; no duress or undue influence; and no overarching
principle of good faith or improper procurement of consensus recognised in South Africa by
SCA; a lower court would need direction before it could make the change.
99 See e.g. D D Tladi, “Breathing constitutional values into the law of contract: freedom of contract
and the Constitution” (2002) 35 De Jure 306; D Tladi, “One step forward, two steps back for
constitutionalising the common law: Afrox Health Care v Strydom” (2002) 17 South African
Public Law 472; Lewis (2003) 120 SALJ 330; Lubbe (2004) 121 SALJ 395.
100 South African Law Commission Report, Project 47, Unreasonable Stipulations in Contracts and
the Rectification of Contracts (April 1998).
101 See A Flessner, “Freedom of contract and constitutional law in Germany”, in A M Rabello & P
Sarcevic (eds), Freedom of Contract and Constitutional Law (1998); A Barak, “Constitutional
human rights and private law”, in D Friedmann & D Barak-Erez (eds), Human Rights in Private
Law (2001) at 40 (good faith a means of introducing human rights principles into Israeli
contract law, especially equality).
good faith 65
since the well-known case of Sasfin v Beukes in 1989,102 and it was put into play
in Afrox, failing because only one basis for doing so was put forward, viz certain
provisions of the Constitution which did not point clearly to the conclusion
sought. Alfred Cockrell and I have argued that public policy falls to be distin-
guished from good faith. The latter is essentially concerned with the relation-
ship of the contracting parties, albeit applying external community standards to
them, while public policy deals with more general issues such as the prevention
of crime and wrongs, the protection of marriage and family life, the right to
work, and the proper administration of justice. South African law has a much
more dynamic concept of public policy than Scotland, where there has been
what Cockrell and I call a “hardening of the categories”; it offers some
103
interesting lessons for PECL, a point to which I will briefly return below.
The Supreme Court of Appeal has reaffirmed, but also developed, its basic
stance on good faith in its most recent discussion of the subject, in South
104
African Forestry Co Ltd v York Timbers Ltd. The case involved contracts
for the supply of logs from SAFCOL plantations to the defendants’ sawmills.
The contracts, which were to continue for an unspecified period, contained
mechanisms for the revision of prices from time to time, and for termination
should the parties be unable to agree new prices. But the contract was later
amended so that in the event of disagreement over price revision the matter
was to be referred to a Government Minister who was empowered to refer
the dispute on to arbitration if he were of the opinion that no agreement
could be reached. There was also provision for the Minister to settle disputes
about other terms subject to revision, but if his decision was unacceptable to
the sawmill company, the contract would continue on the old terms, but sub-
ject to termination after five years. The sawmill company also had the right to
terminate the contract at any time on one year’s written notice, while should
the Minister at any stage be of the opinion that it would be in the interest of
the wood industry or of the country as a whole to terminate the contract, then
SAFCOL would be entitled to cancel the contract on giving the sawmill
company written notice of at least five years. The policy behind this remark-
ably unbalanced contract was to encourage private sector investment in the
sector, with long-term agreements giving investors in a capital-intensive
industry time to recoup their investment, as well as some security of tenure.105
102 1989 (1) SA 1 (A).

103 See H MacQueen & A Cockrell, “Illegal contracts”, in Zimmermann, Visser & Reid, Mixed
Legal Systems, esp at 171–175; and further below, final paragraph of this article.
104 2005 (3) SA 323 (SCA).
105 See para [3] of Brand JA’s judgment.
For many years SAFCOL sought price revision under their contract with
York; but they were frustrated, or strung along, by an adroit series of
manouevres by York, which enabled the latter to continue to sell its timber in
the market at prices up to 60 per cent lower than those of competitors who
had agreed price revisions with SAFCOL under other contracts. SAFCOL
had great difficulty in persuading the relevant Minister to become involved,
and finally went to court to seek an order that the York contracts had been
terminated. Their claim was based upon breach by York of an implied term in
the contracts, to the effect that York would act in accordance with the dictates
of reasonableness, fairness and good faith when SAFCOL sought price
revisions under the contract.
Giving the judgment of the court, Brand JA rejected SAFCOL’s conten-
tions. He reaffirmed the approach to good faith in the Brisley and Afrox cases
as an underlying value; to allow good faith a more active role would
undermine certainty to an unacceptable degree. A term could be implied on
the basis of good faith, but not to override what the parties had intended as
that could be derived from interpretation of the contract’s express terms.
But Brand JA then went on to say that “in the interpretation process, the
notions of fairness and good faith … have a role to play”, and continued (para
32):
While a court is not entitled to superimpose on the clearly expressed intention of
the parties its notion of fairness, the position is different when a contract is
ambiguous. In such a case the principle that all contracts are governed by good
faith is applied and the intention of the parties is determined on the basis that they
negotiated with one another in good faith. [33] Having regard to the provisions of
clause 3.2 it is clear that it confers the right upon a party (in this instance, Safcol)
who found it impossible to come to an agreement on revision of price, firstly, to
approach the Minister as a preliminary step to arbitration and, secondly, to refer
the matter to arbitration if the Minister should express the opinion that no
agreement could be reached. Although the clause does not expressly impose any
duty or obligation on the other party (York) the corollary of the rights conferred
upon Safcol is an obligation or duty on the part of York not to frustrate Safcol in the
exercise of these rights. This follows logically from the structure of the rights and
duties the parties themselves created. [34] However, had there been any
interpretative ambiguity as to the existence of such a duty or obligation on the part
of York, it is removed by considerations of reasonableness, fairness and good faith.
In other words, even where the logical consequences of the rights and duties may
not necessitate such an inference, the underlying principle of good faith requires
its importation.
Brand JA then went on to say that York had indeed frustrated and delayed
SAFCOL in the exercise of its rights:
good faith 67
by pretending that it was prepared to negotiate; by contending that it was possible

to reach agreement whereas obviously it was not; by contending, contrary to the
whole scheme of the agreements revealed by clauses 3.2 and 4.2, that revised
prices could not be negotiated before the terms of the long term contracts had
been settled; by raising contentions which can only be described as absurd, as for
example, that a reference to the Minister was inappropriate where the parties
were in agreement on the principle that there should be price revision, thus
creating an obvious deadlock; by insisting upon the Minister’s involvement only to
raise the objection subsequently that Safcol had approached the wrong Minister
and that the Minister should recuse himself on grounds of bias.
All this, the judge concluded, amounted to such repudiation as to justify

SAFCOL in terminating the contract.
The case shows that to say good faith has an underlying rather than a
creative role in the law of contract need not imply judicial passivity in the face
of bad faith behaviour that is seemingly not prohibited by the contract’s
express terms. It is a good illustration of what PECL would call having regard
to good faith and fair dealing in the interpretation of a contract (Article 5:102
PECL), and perhaps also an instance of the duty of contracting parties to co-
operate to give full effect to the contract (Article 1:202 PECL). There are
also elements of fundamental non-performance under Article 8:103 PECL,
that is, intentional non-performance substantially depriving the aggrieved
party of what it was entitled to expect under the contract, and giving that party
reason to believe that it could not rely on the other’s future performance.
There is a comparison with a Scottish decision in a construction case, Scottish
106
Power v Kvaerner Construction, where a sub-contractor (SP) recovered
damages from a main contractor (K) for disruption and delay to its work caused
by the latter. The decision was based upon implied terms that K would not hinder
or prevent SP from carrying out their obligations in a regular and orderly
manner; that K would take all reasonable steps to enable SP to carry out their
work in an orderly manner; and that K would provide such information as
ought reasonably to be known to K and required by SP so as to enable SP to
fulfil their obligations. The court also indicated that while implied terms could
not contradict express terms, they could deal with the same subject area.107
A final observation from South Africa is the current lack of any developed
doctrine akin to culpa in contrahendo or ‘Melville monument’ liability in
Scots law. But in Transnet Ltd v Goodman Brothers (Pty) Ltd108 it was held
106 1999 SLT 721. See also E & J Glasgow Ltd v UGC Estates Ltd [2005] CSOH 63.
107 Compare, however, Thomson v Thomas Muir (Waste Management) Ltd 1995 SLT 403 (described
in MacQueen & Thomson, Contract, para 3.37).
108 2001 (1) SA 853 (SCA).
that the Constitution required a government-owned corporation to provide

an unsuccessful tenderer with reasons why another had been preferred,
while in Transnet Ltd v Sechaba Photoscan (Pty) Ltd 109 the same corporation
was ordered to pay damages including loss of prospective profit to another
unsuccessful tenderer, in a tender process admitted to have been irregular,
fraudulent and dishonest. In yet another case involving Transnet, the
Supreme Court of Appeal held that an agreement to negotiate in good faith
110
was enforceable.
E. LESSONS
What lessons are to be drawn from all this mixed system material? One is
obvious: in all the systems there is current, active debate about good faith in
contract, along with relevant activity in legislation, the courts and legal
practice. This is a significant subject, and it is right that there should also be
discussion about it at a European level. Further, if European legal develop-
ment moves forward by way of instruments, whether legislative or “soft law”
in character, specific reference in them to good faith is highly likely. Indeed,
such reference is already frequently made: see the Unfair Terms, Commer-
cial Agents and Distance Selling Directives, for example. The UNIDROIT
PICC 2004 also use the concept of good faith and fair dealing similarly to
PECL (although the differences between the two instruments deserve more
111
exploration than is possible here). The European Code of Contract
prepared by the Pavia Academy of European Private Lawyers gives good
faith a significant role in pre-contractual liability (Article 6), implying terms
(Article 32), interpretation (Article 39(1)), determining the effects of the
contract (Article 44), performance (Article 75), and suspension of performance
109 2005 (1) SA 299 (SCA).

110 Southernport Developments (Pty) Ltd v Transnet Ltd 2005 (2) SA 202 (SCA).
111 Thus, although each party must act in accordance with good faith and fair dealing in
international trade and the duty is non-excludable (Article 1.7 PICC), freedom and sanctity of
contract are not made subject to good faith (Articles 1.1, 1.3 PICC). Liability in negotiations
depends on “bad faith” (Article 2.1.15 PICC), and in general direct reference to good faith is
avoided in particular clauses (although see Articles 4.8 (supplying omitted terms) and 5.1.2
PICC (implied obligations)). The right to terminate is controlled through the concept of
fundamental non-performance rather than good faith, and parties’ right to require strict
compliance is unaffected (Article 7.3.1 PICC). Exemption clauses can be struck down only if
grossly unfair (Article 7.1.6 PICC). In general the Principles appear to prefer to speak of
“reasonableness”: see Chapter 4 (interpretation), and Articles 5.1.3 (co-operation) and 6.2.3
PICC (hardship renegotiations).
good faith 69
(Article 108); but, notably, there is no over-arching principle.112 As a final

footnote, it may be observed that the draft Code of Contract Law prepared
for the Law Commissions of England and Scotland by Harvey McGregor
between 1967 and 1971 also provided for an obligation of good faith in
performance, albeit in terms of requiring fair dealing.113
All the codified mixed systems also use an express concept of good faith,
and the intention seems to be to cover against gaps in the code and create
flexibility for the future. Louisiana, Quebec and Israel all have a very general
provision alongside other, more specific, ones. Louisiana and Quebec ulti-
mately go back to French influence for their more specific provisions on good
faith in performance – but the former’s approach to this may well be more
influenced by USA UCC § 1–203 (good faith in performance only). Neither
Louisiana nor Quebec has anything akin to Israel’s provision on culpa in
contrahendo, but each thinks that their general clauses will do the trick if
necessary. In all three jurisdictions a process of Civilianisation is readily
discernible in the modern developments of texts on good faith; but there is
also a concern to increase the scope for contractual equity in the courts. The
courts appear to use good faith alongside the ordinary rules of contract and
obligations, however, supporting and supplementing rather than altogether
displacing them.
The contrasting lack of an explicit general principle in the uncodified
systems may be explicable by their case law basis for contract, and the typical
reluctance of the judiciary to do more than is necessary to decide the case
before them. A contract law built up from cases is more likely than a code to
be a system of fairly specific rules. Such rules may be latently informed by
good faith, but the judge is unlikely to take good faith very often as the major
premise justifying the conclusion of the case. In the main this system works
reasonably well; but every now and then the judges need a helping hand from
the legislature and commentators before all the issues can be addressed – for
example, with regard to unfair contract terms, extortionate credit bargains
114
(recently in the news in England ) and the like. Culpa in contrahendo may
112 I have used the translation published in September 2004 as a special issue of the Edinburgh
Law Review, under the title European Code of Contract.
113 H McGregor, Contract Code drawn up on behalf of the English Law Commission (1993),
section 201. See further McGregor, “The codification of contracts in England and Scotland”, in
A M Rabello (ed), Aequitas and Equity: Equity in Civil Law and Mixed Jurisdictions (1997).
114 See the decision to set aside an extortionate credit bargain reported on BBC News Online 28
Oct 2004: http://news.bbc.co.uk/1/hi/england/merseyside/3962963.stm. A UK Government Bill
to amend the law on extortionate credit bargains is currently before the Westminster Parlia-
ment (see further Professor du Plessis’ contribution to this volume, at 165 n 74).
be another such area, although the creation of such a liability would meet
opposition from many at least in British legal as well as business circles.
By and large, good faith appears to be primarily an “excluder” in all the
mixed systems, working to prevent bad faith (or perhaps more accurately,
unreasonableness) more than to impose positive requirements of behaviour
on contracting parties. The main exception noted in this paper is the
sequence of cases in Scotland beginning with Smith v Bank of Scotland,
under which the courts have required banks to achieve certain standards of
conduct in their dealings with prospective guarantors where they have a close
personal relationship with the debtor whose debts are to be guaranteed. In
doing this, the courts have taken into account the banks’ own Code of
Practice on the matter – in the language of PECL, they have referred to
generally applicable and reasonable usages and practices. But even here the
courts have looked at all the circumstances, so that, for example, it was not
fatal to the guarantee’s enforceability for the bank to have failed to advise the
prospective guarantor away from her matrimonial home that she needed to
take independent legal advice, when she had anyway taken such advice and
moreover had not disclosed its substance to the court where she was seeking
to reduce the guarantee.115
Against this background, what should be done in European contract law?
There is a debate already about this on the Continent, and I want here to pick
out some recent contributions to that discussion. The Dutch scholar Martijn
Hesselink argues that there is no need for a general principle of good faith in
a European contract code, so long as the rules already developed on the basis
116
of good faith are clearly articulated and formulated as rules in the system.
If a general principle is left in, its function should mainly be to remind judges
of the need to develop the law by way of interpretation, correction and
supplementation of contracts; in Zimmermann’s words, “an invitation, or
reminder, for courts to do what they do anyway: to develop the law in
117
accordance with the perceived needs of their times”. Hein Ko…tz has a
similar, but more positive, view of the role to be played by good faith in Euro-
pean contract law. In an article in which he sets out to allay English lawyers’
fear of good faith, he argues that it is a mechanism by which judicial decisions
develop the law incrementally and case by case (the Fallgruppen approach of
German law). Ko…tz concludes: “An open texture calling for judicial amplification
115 Clydesdale Bank v Black 2002 SC 555.

116 M Hesselink, “The concept of good faith”, in A Hartkamp et al, Towards a European Civil Code,
3rd edn (2004), 471–498.
117 Zimmermann, Roman Law, 176.
good faith 71
seems preferable because the whole project [of a European Civil Code/
Contract Law] might fail unless European judges were left with an area of
play larger perhaps than that acceptable in any national legal system.”118
Finally, Matthias Storme argues that while judicial activism should be
contained by the formulation of as many precise rules as possible, an open-
ended rule of good faith which is more than just the absence of bad faith, is
needed in European contract law, because good faith cannot be exhausted as
a source of more specific norms, and may also act as a corrective against the
119
way rules originally based on good faith subsequently develop. Thus, I
think, he would allow Articles 1:102 and 1:106 PECL to co-exist with more
precise rules (such as Article 4:110 PECL) also invoking good faith in their
text. Further, the specific instances of good faith in the code give guidance as
to the scope of the general norm. Perhaps too this refutes Hugh Beale’s
argument that Article 1:102 PECL cannot be meant as an over-arching clause
120
because there are more specific controls elsewhere in PECL. Storme
suggests that the real issue is judicial activism: how to encourage it, without
having too much of it. He thinks the answer may lie in the approach of the
Swiss Civil Code, requiring the judge exercising discretion to do so by way of
a formulation of a rule:
If no relevant provision can be found in a statute, the judge must decide in
accordance with the customary law and, in its absence, in accordance with the rule
which he would, were he the legislator, adopt. In so doing he must pay attention to
121
accepted doctrine and tradition.
From all this, I draw the message that a general good faith principle (or
equivalent) should and probably will be included in a European contract
code or restatement or Common Frame of Reference, as a way of enabling
judges to meet the probability that cases will arise which will be at best
incompletely provided for by whatever more specific rules there may be. It
will have to be a European principle, not one based upon any notion of the
concept found in any given legal system within the European Union; and its
118 H Ko…tz, “Towards a European Civil Code: the duty of good faith”, in P Cane & J Stapleton (eds),
The Law of Obligations: Essays in Celebration of John Fleming (1998) at 258.
119 “Good faith and contents of contracts in European private law”, in S Espiau & A Vaquer Aloy,
Bases of a European Contract Law (2003), 17–30.
120 See above, text accompanying note 10.
121 Article 1 paras 2 and 3 Swiss Civil Code. Cf the approach to equity often found in Louisiana
courts: V V Palmer, The Louisiana Civilian Experience (2005), 249–250, esp at n 98. See also
Stapleton (1999) 49 CLP 1 at 28–35, arguing that recognition of good faith also entails the
deployment of “incidence” rules, identifying relevant factors in determining when the require-
ment bites and when it does not.
role will be determined in the first place by the other specific rules in the
European system. Good faith should be seen, not so much as an over-arching
as an underlying principle, much as it is at present in Scots and South African
law. As an underlying principle, its role will be mainly to exclude bad faith,
possibly attached to a presumption of good faith akin to that found in Article
2805 of the Quebec Civil Code.122 But the principle can in some circum-
stances be the basis for new rules (e.g. like that in the Smith case in Scots law)
or re-rationalisations of existing authority or rules to develop them further (as
with my suggestions for culpa in contrahendo in Scots law); or simply a
guideline in the application of existing rules.
Whether this is quite what PECL gives us is perhaps a moot point. My
general impression, despite Hugh Beale’s arguments to the contrary, is that
Article 1:201 PECL is intended to be an over-arching principle, capable of
over-powering rather than just tempering freedom of contract; and that the
appearance of good faith in other, more specific, articles must be seen, as
suggested by Matthias Storme, as simply showing places where the drafters
found it especially helpful to reinforce the strong role good faith is intended
to play throughout the Principles. Having said that, it is unfortunate that in
some areas where it would be very important to know whether or not good
faith had a part to play, such as termination for non-performance, there is
nothing specific in the black-letter text, and the ambiguous comments on the
matter are placed at a considerable distance from the actual Articles on
termination. Beale’s point about the need to revise PECL to make the general
approach more explicit, whether it be an over-arching or an underlying one,
is therefore well made in general, and needs, like good faith itself, to be taken
seriously. Indeed, I find myself in agreement with what I take from his paper
to be his preferred position on the question of good faith, seeing it as
primarily an important underlying principle, albeit certainly not a wholly
inactive or inert one.
A final observation concerns the interaction between the good faith
principle, whatever its content and role, and the “public policy” clause in
PECL:
Article 15:101: Contracts Contrary To Fundamental Principles
A contract is of no effect to the extent that it is contrary to principles recognised as
fundamental in the laws of the Member States of the European Union.
122 See above, text accompanying notes 29–30. Stapleton (1999) 49 CLP 1 at 17–20, argues in
favour of a presumption of good faith. See also Article 1:201 PECL Comment F.
good faith 73
As already indicated, there is a fundamental difference between good faith

and public policy, lying essentially between the former’s concentration upon
the relationship of the contracting parties and the latter’s concern with
broader social issues. So fundamental principles are concerned with human
rights as expressed in the European Convention on Human Rights and the
European Constitution, as well as basic legal ideas which are widespread in
the European Union, such as hostility to interference with the processes of
justice and to restraints upon personal liberty or the right to work, as well as
support for contemporary understandings of family life and morality. Public
policy is also confined to the invalidation of contracts and does not impose
positive obligations and liabilities in the manner sometimes achieved by way
of good faith. But it is rather important that, if there are two general clauses
of this kind operative within European contract law, their respective terri-
tories and bounds are fairly clearly set out. By comparison with good faith,
discussion of public policy in the European Union has scarcely begun. But
this too is a discussion we need to have.
3 Offer, Acceptance and the
Moment of Contract Formation
Geo Quinot
A. INTRODUCTION
B. THE OFFER AND ACCEPTANCE MODEL
C. CONTRACT FORMATION INTER ABSENTES
(1) Development in Scotland
(2) Development in South Africa
(3) Justification and problems
(4) The PECL approach
(5) Comparison
D. CONCLUSION
A. INTRODUCTION
It was the Natural lawyers of the seventeenth century, especially in France,
who developed the concept of consensus as the basis of modern contract law.1
Roman-Dutch authorities embraced this notion and further accepted that
consensus can be analysed in terms of two declarations of will, i.e. offer and
2
acceptance. These Civilian concepts also had a profound influence on the
development of contract law in the Common Law. In England, especially,
Pothier’s writings on the subject became influential and resulted in the
3
adoption of the offer and acceptance analysis. English jurists in turn further
developed and refined offer and acceptance to a model of contract
4
formation.
The offer and acceptance model is a standard feature of modern contract
5
law in South Africa and Scotland. Typically of both these mixed legal

2 Zimmermann, Obligations, 567–569; D Hutchison, “Contract formation”, in Zimmermann &
Visser, Southern Cross, 173.
4 Hutchison, in Zimmermann & Visser, Southern Cross, 173.
5 McBryde, Contract, 123–161; SME, vol 15, para 619; Gloag, Contract, 24–27; Walker, Contract,
para 7.1; MacQueen & Thomson, Contract, 39; Van der Merwe et al, Kontraktereg, ch 3; Kerr,
Contract, 61–129; Christie, Contract, 32–88.
74
offer, acceptance and the moment of contract formation 75
systems, the model was received from Civilian sources, but has been signifi-
cantly influenced by the Common Law.6 As such, the offer and acceptance
model presents an interesting subject matter for a comparative analysis of the
newly formulated PECL7 viewed against the mixed legal systems of South
Africa and Scotland. The focus in this paper is specifically on that aspect of
the Scots and South African model that represents the most evident
Common Law influence, namely the rules pertaining to inter absentes
8
contracting and specifically the so-called postal rule. The goal of the analysis
is on the one hand to determine to what extent PECL can be likened to mixed
legal systems such as South Africa and Scotland. On the other hand, and
perhaps more importantly, it is to see whether any reciprocal lessons can be
learned. Part B starts off the discussion with a comparison of the general offer
and acceptance models found in the three systems. Part C then focuses
specifically on the approach to inter absentes contracting, and it begins with
the situation in Scots and South African law (1) and (2). That is followed by a
more general discussion of the justification traditionally advanced for the
adoption of the postal rule of contract formation and the problems emerging
from the application of this rule: C(3). Part C(4) sets out the specific
approach to inter absentes contracting adopted by PECL. Subsequently, the
rules developed in Scots and South African law are compared to those
adopted by PECL. Finally, some conclusions will be drawn.
B. THE OFFER AND ACCEPTANCE MODEL

In both Scots and South African law offer and acceptance are regarded as the
9
most basic conceptual tool in analysing the formation of contracts. Both
systems, however, recognise that the analysis in terms of offer and acceptance
is only a tool and not a prerequisite for determining whether a contract is
10
formed. Commentators have convincingly shown that there are many
instances of contracting where the formation of the contract cannot
6 Hutchison, in Zimmermann & Visser, Southern Cross, 173–174; J E du Plessis, “Common Law
influences on the law of contract and unjustified enrichment in some mixed legal systems” (2003)
78 Tulane LR 219 at 230; McBryde, Contract, 7–11; G F Lubbe, “Formation of contract” in Reid
& Zimmermann, History, vol 2, 44.
7 PECL, Chapter 2 Section 2.
8 This is also sometimes referred to as the mailbox rule or dispatch rule.
9 Stair, Institutions, 1.10.3 (“So then an offer accepted is a contract, because it is the deed of two,
the offerer and accepter”); De Wet & van Wyk, Kontraktereg, vol 1, 32; Van der Merwe et al,
Kontraktereg, 52; McBryde, Contract, 123; MacQueen & Thomson, Contract, 39.
10 De Wet & Van Wyk, Kontraktereg, 32–33; McBryde, Contract, 124–125; Gloag, Contract, 44; Van
der Merwe et al, Kontraktereg, 52–53; MacQueen & Thomson, Contract, 39, 54–55.
satisfactorily be analysed by way of offer and acceptance.11 Nevertheless, the

model is widely used to determine whether a contract has come into
existence and what the content of that contract is.
PECL also adopts the offer and acceptance model in analysing the
conclusion of contracts. However, they go further than Scots and South
African law. Article 2:211 PECL states that the rules on offer and acceptance
contained in PECL Chapter 2 Section 2 also apply “with appropriate
adaptations” to instances of contracting that do not follow the offer and
12
acceptance model. Yet it is difficult to see how that is going to work. Take,
for example, the case of protracted negotiations between the parties, with a
multitude of documents exchanged. It may not always be possible (or
realistic) to subject such process to an offer and acceptance analysis,
especially where the end result is the signing of a document recording the
13
agreement between the parties and drawn up by a third party. Can the rules
14 15
regarding the revocation of offers and acceptances be applied to such
cases to prohibit one party walking away from the transaction prior to signing
the agreement?16 However, PECL does not elevate offer and acceptance to
requirements for the conclusion of a contract; to that extent, they are in line
with Scots and South African law. Article 2:101 PECL states that the con-
ditions for the conclusion of a contract are an intention by both parties to be
legally bound and sufficient agreement between these parties “without any
further requirement”17 including “requirements as to form”.18 This provision
is also important in that it confirms that PECL does not require consideration
19
or causa for an agreement to be binding. Once again, therefore, by
requiring nothing more than offer and acceptance to create a binding
20
contract, PECL is similar to Scots and South African law.
11 See note 10 above; Zweigert & Kötz, Comparative Law, 356–357.

13 See De Wet & Van Wyk, Kontraktereg, 32; Zweigert & Kötz, Comparative Law, 356–357;
MacQueen & Thomson, Contract, 39.
14 Article 2:202 PECL read with Article 1:303 PECL.
15 Article 2:205 PECL read with Article 1:303 PECL.
16 PECL provide detailed rules for negotiations prior to contract formation in Chapter 2 Section 3,
so that it may not be necessary to resort to offer and acceptance rules in the stated scenario. The
present example can be solved with reference to Article 2:301 PECL that provides for breaking
off negotiations.
18 Article 2:101(2) PECL. This position is confirmed by Article 2:107 PECL, which states that a
promise which is intended to be binding without acceptance is binding, read with Article 1:107
PECL which applies the Principles by analogy to unilateral promises.
19 See the notes to Article 2:101 PECL.
20 McBryde, Contract, 123; Hutchison, in Zimmermann & Visser, Southern Cross, 166–173.
The offer and acceptance model adopted by PECL conforms in general

terms to the Scots and South African models. Offers have to be made with the
intention that acceptance will create a binding contract,21 it has to be suffici-
ently certain to form a contract,22 must be communicated to the offeree(s),23
and need not be made to a specific offeree.24 Whether a specific statement by
the offeror will amount to an offer or simply an invitation to make an offer25
will in Scots and South African law depend on the circumstances of the
26
particular case and principally on the intention of the offeror. In this regard
it has been stated in both South African and Scots law that the display of
goods in a shop with prices attached to them does not amount to an offer, but
27
only to an invitation to make an offer. PECL adopts a different approach to
such cases. Although the distinction between offers and invitations to make
offers will have to be determined with reference to the general requirements
28
for offers stated in PECL, a special rule is laid down for the display and
29
advertisement of goods and services by professional suppliers. In terms of
this provision such proposals to supply goods or services at a stated price will
be presumed to be an offer. The presumed offer will, however, be subject to
availability of stock, or the supplier’s capacity to render the service. PECL’s
approach differs from the Scots and South African position only with regard
to the burden of proof. In Scots and South African law the party claiming that
a contract has come into existence by a purported acceptance of an offer
contained in the advertisement or display will have to show that the
advertisement or display did in fact amount to an offer. Under PECL, in
contrast, the party claiming that no contract has come into existence under
21 Article 2:201(1)(a) PECL; Van der Merwe et al, Kontraktereg, 54; McBryde, Contract,128; SME,
vol 15, paras 615, 616, 620; Gloag, Contract, 16–17, 24–25; Walker, Contract, para 7.6;
22 Article 2:201(1)(b) PECL; Van der Merwe et al, Kontraktereg, 55; McBryde, Contract, 128;
SME, vol 15, para 620; Walker, Contract, para 7.6; MacQueen & Thomson, Contract, 40.
23 Article 2:201(2) PECL; Van der Merwe et al, Kontraktereg, 59; McBryde, Contract,134–135;
SME, vol 15, paras 628–630; Gloag, Contract, 16–17; Walker, Contract, paras 7.7, 7.45, 7.46;
24 Article 2:201(2) PECL; Van der Merwe et al, Kontraktereg, 54; McBryde, Contract,132–133;
SME, vol 15, para 627; Gloag, Contract, 22; Walker, Contract, para 7.19; MacQueen & Thomson,
Contract, 44–45.
25 In Scots law this is often referred to as an invitation to treat: SME, vol 15, para 620.
26 Van der Merwe et al, Kontraktereg, 55–56; McBryde, Contract, 128–131; SME, vol 15, paras
620–626; Gloag, Contract, 21–24; Walker, Contract, paras 7.7–7.13; MacQueen & Thomson,
Contract, 40–44.
27 Crawley v Rex 1909 TS 1105; Campbell v Ker 24 Feb 1810 FC referred to in SME, vol 15, para
621; McBryde, Contract, 129; Walker, Contract, para 7.9; MacQueen & Thomson, Contract, 42.
28 Article 2:201(1) and (2) PECL.
these circumstances will have to show that the advertisement or display did
not amount to an offer.30 Like South African and Scots law, PECL allows for
offers to be revoked prior to acceptance.31
Under all three systems any unequivocal indication of assent to the offer
will amount to an acceptance.32 Such indication may be either by words or
conduct, but must come from the offeree.33 Generally, the acceptance must
34
simply indicate assent to all the terms and conditions of the offer. In each
system this general statement presents a somewhat simplified view of the
model, and exceptions to the general position are recognised, allowing for
35
some variance between offer and acceptance. In keeping with the general
position, and subject to the exceptions just noted, anything more or less than
simple consent to the terms of the offer will amount to a rejection of the offer,
36
and will constitute a counter-offer under all three systems.
From the above discussion, it seems that there is a fair amount of similarity
between PECL on the one hand and Scots and South African law on the
other, as far as the general characteristics of the offer and acceptance model
are concerned. This is not surprising in the light of the shared use of the
model in Civil and Common Law systems noted above. More interesting
though, for present purposes, is PECL’s approach to inter absentes con-
tracting. As also noted above, it is in this aspect of the principally Civilian offer
and acceptance model that our mixed legal systems show significant Common
Law influence. In analysing the “mixed character” of PECL, it is to this
aspect of the model that we therefore have to turn our attention.
30 An alternative defence would be that the condition under which the presumed offer was made
was not fulfilled, i.e. that the stock of goods or capacity to supply the services was exhausted prior
to the other party’s purported acceptance of that offer.
31 Article 2:202 PECL. Van der Merwe et al, Kontraktereg, 57; McBryde, Contract, 140; SME, vol
15, para 647; Gloag, Contract, 37; Walker, Contract, para 7.32; MacQueen & Thomson, Contract,
45.
32 Article 2:204 PECL; McBryde, Contract, 145; SME, vol 15, para 631; Gloag, Contract, 26–30;
Walker, Contract, paras 7.38–7.39; Van der Merwe et al, Kontraktereg, 58–60; MacQueen &
Thomson, Contract, 46.
33 Article 2:204(1) PECL; McBryde, Contract, 145–147, 156; SME, vol 15, paras 631, 632, 638;
Gloag, Contract, 26–30; Walker, Contract, paras 7.38, 7.45, 7.48, 7.66; Van der Merwe et al,
Kontraktereg, 63–64; MacQueen & Thomson, Contract, 46, 47–48.
34 Articles 2:204 and 2:208 PECL; McBryde, Contract, 150; SME, vol 15, para 635; Gloag,
Contract, 39–42; Walker, Contract, para 7.49; Van der Merwe et al, Kontraktereg, 59–60;
35 In the light of Professor Forte’s chapter on the battle of the forms, this aspect of offer and
acceptance will not be discussed here.
36 Article 2:208(1) PECL; McBryde, Contract, 152; SME, vol 15, para 635; Gloag, Contract, 39;
Walker, Contract, para 7.49; Van der Merwe et al, Kontraktereg 59–60; MacQueen & Thomson,
Contract, 46.
C. CONTRACT FORMATION INTER ABSENTES
When parties contract inter praesentes it is not difficult to discover the

moment and place of contracting as evidenced by offer and acceptance.
Since the moment when the offeree indicates her acceptance of the offer
37
coincides with the moment when the offeror learns of such acceptance, that
moment naturally constitutes the time of contracting. However, when parties
contract inter absentes the offer and acceptance model can lead to significant
difficulties in establishing the time and place of contracting. At what exact
moment during the process of contract formation does the contract come
into being?38
At least four theories have been advanced to address this question:39
1. The declaration theory states that the contract comes into existence
when the offeree declares her acceptance of the offer.
2. The expedition theory holds that the moment of contracting is when
the acceptance is dispatched to the offeror.
3. The reception theory focuses on the key moment as the one when the
acceptance reaches the offeror, that is when it is delivered to his
address. The offeror may not necessarily be aware that the acceptance
has reached him.
4. The information theory states that the contract will be formed only
when the offeror becomes aware of the acceptance.
The Roman-Dutch authorities differed about which of these theories to
adopt.40 Grotius advocated the information theory, but subject to the
intention of the parties.41 Huber, in contrast, favoured the declaration theory
42
and expressly rejected Grotius’ view. Voet seems to have supported either the
43
reception or the information theory. The early Scots Institutional Writers,
37 I am leaving aside the situation where the parties negotiate inter praesentes, but for some reason
the acceptance does not come to the attention of the offeror, e.g. the offeror does not hear the
offeree.
38 The answer to this question is also of utmost importance for conflict of law purposes. The locus
contractus is often dispositive in conflict of law questions: see C F Forsyth, Private International
Law: The modern Roman-Dutch law including the jurisdiction of the high courts, 4th edn (2003),
303–325.
39 Cape Explosive Works Ltd v South African Oil & Fat Industries Ltd 1921 CPD 244 at 256; Van
der Merwe et al, Kontraktereg, 53 n 9; Hutchison, in Zimmermann & Visser, Southern Cross, 174;
E Kahn, “Some mysteries of offer and acceptance” (1955) 72 SALJ 246 at 254–255.
40 See the discussions in The Fern Gold Mining Co v Tobias (1890) 3 SAR 134 at 137–138; Cape
Explosive (note 39) at 257–258; Hutchison, in Zimmermann & Visser, Southern Cross, 174.
41 Grotius, De jure belli ac pacis, 2.11.15 (transl F W Kelsey, 1925).
42 Cape Explosive (note 39) at 258; Hutchison, in Zimmermann & Visser, Southern Cross, 174.
43 Voet, Commentarius ad Pandectas, 5.1.73 (transl P Gane, 1956).
notably Stair, did not express an opinion on the point.44 In both South Africa
and Scotland it was thus left to the courts to develop an appropriate approach
to contract formation inter absentes, without much guidance from the
traditional sources.
(1) Development in Scotland

It is a clear rule of Scots law that an acceptance must be communicated to the
offeror before a contract will come into existence.45 However, it is consider-
ably less clear whether this rule in fact adopts the reception or information
theory in Scots law. Scottish case law does not seem to provide an unequi-
46
vocal answer in this regard. In contrast, English courts appear to have opted
47
for the information theory. On the strength of the Entores judgment, in
particular, a number of academic commentators have argued that the
48
information theory also applies in Scots law. However, there are also strong
49
dissenting voices favouring the reception theory. It is clear, however, that
the offeror may prescribe a method of acceptance and thereby either waive
44 Thomson v James (1855) 18 D 1 at 12–13; see Lubbe, in Reid & Zimmermann, History, vol 2, 38;
du Plessis (2003) 78 Tulane LR 219 at 231. Although there is reference to Bell’s Commentaries in
the early Scottish case of Dunlop v Higgins [1848] 1 HLC 381 as authority for the proposition that
the expedition theory applies in Scotland, Bell’s statements have been interpreted as referring to
English rather than Scots law (Huntley, Contract, 137).
45 Thomson v James at 1; McBryde, Contract, 157; SME, vol 15, para 641; Gloag, Contract, 28;
Walker, Contract, para 7.55; Hogg, Obligations, 44; Huntley, Contract, 129; MacQueen &
Thomson, Contract, 48.
46 Hogg, Obligations, 45. This uncertainty is augmented by the position pertaining to the revocation
of offers in an inter absentes context. Although the clear rule seems to be that such revocation will
only be effective if it is communicated to the offeree before acceptance, it is less clear what is
meant with “communication” in this respect. In Burnley v Alford (1919) 2 SLT 123 it was said that
as a general rule a revocation of an offer must be “brought to the knowledge or mind of the party
holding the offer” to be effective, i.e. applying the information theory, but that such rule is not of
rigid application and that mere delivery to the address of the offeree may suffice in certain
circumstances, i.e. applying the reception theory.
47 Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 at 332 per Denning LJ; Brinkibon Ltd
v Stahag Stahl und Stahlwarenhandelsgesselschaft mbH [1982] 1 All ER 293, HL.
48 SME, vol 15, para 643; Walker, Contract, paras 7.55, 7.63; Huntley, Contract, 129–131; see also
Hogg, Obligations, 45; MacQueen & Thomson, Contract, 49, 52; Gloag, Contract, 28, 38.
49 A notable dissent from the above view is the argument presented by Professor McBryde
(Contract at 157–158) that knowledge on the part of the offeror is not a requirement for the
existence of a contract. He argues that the offeree need have only an intention to accept and have
moved beyond the deliberative stage. The focus should thus be on the actions of the offeree and
particularly whether she has indicated an irrevocable intention to be bound. McBryde further
states that indications to the contrary in the case law, requiring actual knowledge on the part of the
offeror, are remnants of the (now outdated) adherence to a subjective basis of contractual liability.
See also Hogg, Obligations, 45 (“Putting the written acceptance through the offeror’s letterbox
would be sufficient to constitute acceptance”).
the requirement of knowledge/receipt of acceptance, or expressly require

knowledge.50 Generally the contract will only come into existence once the
offeree has complied with such specific requirements.51
The position regarding postal contracts52 is significantly different from the
one set out above. The application of the expedition theory to postal contracts
was incorporated into Scots law by the House of Lords decision in Dunlop v
53
Higgins. This development was strongly influenced by English law, where
the expedition theory was adopted for postal contracts in the well-known
54
1818 case of Adams v Lindsell. Thus, in Dunlop v Higgins Lord Cottenham
55
LC relied on two English cases, i.e. Adams v Lindsell and Stocken v Collen,
for his conclusion that a postal contract is formed upon dispatch of the letter
56
of acceptance. He simply asserted that the law is the same for Scotland on
57
the strength of Bell’s Commentaries. The classic case, which settled the
58 59
“postal rule” in Scots law, was Thomson v James. In that case the defender
offered to purchase the pursuer’s estate per letter. The pursuer accepted the
offer likewise per letter. Before the acceptance was delivered to the offeror,
but after posting thereof by the offeree, the offeror sent a letter retracting his
offer. The court held that a valid contract had come into existence.
The scope of the postal rule in Scots law is, however, far from clear.60
While the position in English law seems to be settled that the contract will
come into existence upon posting of the letter of acceptance even if the letter
50 SME, vol 15, para 637; McBryde, Contract, 145–147; Hogg, Obligations, 45; Gloag, Contract,
34–35; Walker, Contract, para 7.56; MacQueen & Thomson, Contract, 48–49. This is not to
suggest that the offeror has an unlimited capacity to prescribe any mode of acceptance. The
offeror cannot prescribe all types of action as constituting acceptance, especially where
acceptance is to be in the form of conduct rather than express communication. Also, apart from
exceptional circumstances, silence cannot be prescribed as constituting acceptance. In this regard
see McBryde, Contract, 146–150; SME, vol 15, paras 637–640; Gloag, Contract, 28–29;
MacQueen & Thomson, Contract, 48–49.
51 See note 50 above.
52 Postal contracts, in this context, are contracts concluded completely by means of the post, that is
where both offer and acceptance are made by means of letters sent by post.
53 Huntley, Contract, 136–137; SME, vol 15, para 644; Lubbe, in Reid & Zimmermann, History, vol
2, 35.
54 (1818) 1 B & Ald 681. See further S Gardner, “Trashing with Trollope: a deconstruction of the
postal rules in contract” (1992) 12 Oxford JLS 170; Lubbe, in Reid & Zimmermann, History, vol
2, 35 n 378.
55 (1841) 7 Mee and Wels 515.
56 At 400.
57 At 400.
58 As the application of the expedition theory in cases concerning postal contracts became known.
59 (1855) 18 D1.
60 See Report on Formation of Contract: Scottish Law and the United Nations Convention on
Contracts for the International Sale of Goods (Scot Law Com No 144, 1993), para 4.4.
never reaches the offeror,61 serious doubts exist about this for Scots law.62
Logically, the adoption of the expedition theory in postal contracts should
rule out the possibility of retraction of an acceptance already posted. How-
ever, some commentators have read the case of Countess of Dunmore v
Alexander63 as holding that an acceptance, once posted, may indeed be
retracted should the retraction reach the offeror either before or at least at
64
the same time as the acceptance. Others have doubted whether this is the
65
correct reading of the case. Since Countess of Dunmore preceded the adop-
tion of the postal rule in Scots law it has also been argued that it has been
66
overruled by the decisions accepting the postal rule. It is also not altogether
clear whether the postal rule also applies to other forms of inter absentes
contracting in Scots law. In English law the rule has been applied to
67 68
acceptance by telegram, but not by telephone and telex. It remains to be
69
seen whether this will be followed in Scots law.
Most recently, the Scottish Law Commission has published a report on
contract formation in Scots law containing a recommendation that the postal
rule be abolished in Scots law.70 The report noted the many anomalies
created by the rule and the large measure of uncertainty associated with the
rule in Scots law.71 It furthermore pointed out that all consultees in the
commission’s deliberations leading up to the report supported a change of
the postal rule and that none of them put forward any argument in favour of
61 Household Fire and Carriage Accident Insurance Co v Grant (1879) 4 Ex D 216, CA.
62 Higgins & Sons v Dunlop, Wilson & Co (1847) 9 D 1407 at 1414 per Lord Fullerton; Thomson v
James (note 45) at 12 per Lord President McNeill; Mason v Benhar Coal Co (1882) 9 R 883 per
Lord Shand; Gloag, Contract, 34; Walker, Contract, para 7.60; SME, vol 15, para 644; MacQueen
& Thomson, Contract, 50.
63 (1830) 9 S 190.
64 See SME, vol 15, para 644; Gloag, Contract, 38; MacQueen & Thomson, Contract, 51.
65 SME, vol 15, para 644; Walker, Contract, para 7.69; Huntley, Contract, 149.
66 Walker, Contract, para 7.69 with specific reference to the remarks in Thomson v James (note 45)
at 13 per Lord President McNeill and 25 per Lord Deas, doubting Countess of Dunmore;
MacQueen & Thomson, Contract, 51. Similar uncertainty exists regarding the retraction of an
offer made through the post when such retraction objectively reaches the offeree prior to
dispatch of the acceptance, but only comes to the attention of the offeree after such dispatch. See
note 46 above for a discussion of Burnley v Alford.
67 Stevenson v McLean (1880) 5 QBD 346; Bruner v Moore [1904] 1 Ch 305.
68 See the Entores and Brinkibon cases, both note 47.
69 As noted above, note 47 and accompanying text, Scottish commentators have found these English
cases particularly persuasive regarding the adoption of the information theory in Scots law.
McBryde, Contract at 160 also notes that the reasoning for the adoption of the postal rule in
Thomson v James is not restricted to posting and may therefore lead Scottish courts to extend the
rule to other forms of inter absentes communication. See also Hogg, Obligations, 46.
70 Report on Formation of Contract (Scot Law Com No 144, 1993), paras 4.4–4.7.
71 At para 4.4.
the rule.72 However, the Commission’s recommendation that the rule be

abolished was by no means a new development in Scottish law reform. As
long ago as 1977 the Scottish Law Commission had published a consultative
memorandum on contract formation that suggested the abolition of the
postal rule.73 Although the suggestion had been favourably received74 it had
not been taken further at that time.75 The matter was only raised again when
the adoption of the United Nations Convention for the International Sale of
76
Goods into Scots law was considered. In this context the Commission
77
recommended that the postal rule be replaced by CISG’s receipt rule.
Subject to alternative arrangement between the parties, this rule is supposed
78
to apply to all contracts concluded inter absentes. Although the Commis-
sion’s recommendations included a draft Bill, no legislation has followed as yet.
For the time being, therefore, the postal rule remains in place in Scotland.
(2) Development in South Africa

The South African courts have generally adopted the information theory as
the default approach for contract formation. As early as 1915 the Appellate
Division of the Supreme Court of South Africa stated: “Under ordinary
circumstances the direct communication of the acceptance to the person
making the offer is essential to the constitution of a contractual vinculum.”79
The court added that the offeror may dispense with this requirement and
indicate another method of acceptance.80 This position is now fairly well
entrenched in South African law.81
72 At para 4.6.
73 Formation of Contract (Scot Law Com Memorandum No 36, 1977).
74 See Report on Formation of Contract (Scot Law Com No 144, 1993), para 4.6.
75 Scot Law Com No 144 (1993), para 1.2.
76 At para 1.7.
77 At para 4.7.
78 At paras 2.11, 4.2–4.4.
79 Bloom v American Swiss Watch Co 1915 AD 100 at 102.
80 Bloom at 102. See also Dietrichsen v Dietrichsen 1911 TPD 486, predating that case, where
Wessels J came to similar conclusions.
81 Laws v Rutherford 1924 AD 261; Driftwood Properties (Pty) Ltd v McLean 1971 (3) SA 591 (A);
S v Henckert 1981 (3) SA 445 (A); Westinghouse Brake & Equipment (Pty) Ltd v Bilger
Engineering (Pty) Ltd 1986 (2) SA 555 (A); Amcoal Collieries Ltd v Truter 1990 (1) SA 1 (A); Seef
Commercial & Industrial Properties (Pty) Ltd v Silberman 2001 (3) SA 952 (SCA); Smeiman v
Volkersz 1954 (4) SA 170 (C); Tel Peda Investigation Bureau (Pty) Ltd v Van Zyl 1965 (4) SA 475
(E); Millman v Klein 1986 (1) SA 465 (C); Lines v Liberty Life Association of Africa Ltd 1990 (3)
SA 268 (T); De Jager v Burger 1994 (1) SA 402 (C); Ideal Fastener Corporation CC v Book Vision
(Pty) Ltd (t/a Colour Graphic) 2001 (3) SA 1028 (D); Van der Merwe et al, Kontraktereg, 53 ff;
Kerr, Contract, 111; Christie, Contract, 76; Hutchison, in Zimmermann & Visser, Southern
Cross, 177, 180; De Wet & Van Wyk, Kontraktereg, 37; Lubbe & Murray, Contract, 40.
The single exception to the information theory’s sway in South Africa is the
application of the expedition theory to postal contracts. This exception is one
of the best examples of the direct influence of English law on the South African
law of contract. In the light of the uncertainty amongst Roman-Dutch
authorities regarding the appropriate theory concerning inter absentes
contract formation, the unanimity reached in English law in the early nine-
82
teenth century of applying the expedition theory to postal contracts has
been too tempting for South African judges to resist. Early cases, such as the
83 84 85
Fern Gold Mining case, Bal v Van Staden and Naude v Malcolm, all
pointed towards increasing English law influence on the issue. The leading
case of Cape Explosive Works Ltd v South African Oil & Fat Industries Ltd
86
was decided in 1921. The contracts at issue had both been concluded through
the mail, the offerors mailing their offers from the Transvaal and Natal Pro-
vinces respectively and the offeree mailing its acceptance in both instances
from the Cape Province. The defendants argued that, since the acceptances
were only communicated to them outside the Cape Province, the contracts
were also concluded outside that province, in line with the information
theory. Kotzé JP discussed the opinions of the Roman-Dutch authorities in
some detail and came to the conclusion that no single approach can be
discerned in Roman-Dutch law.87 His analysis of the more recent discussion
of the issue confirmed that the difference in opinion continued in most
foreign jurisdictions such as Dutch, French and German law.88 In contrast,
the judge noted that English law unequivocally adopted the expedition
89
theory in the case of postal contracts such as the one before the court. His
analysis of the early South African cases on point indicated a leaning towards
the English rule, but confirmed that the issue had not been decided in South
90
Africa. Accordingly, he laid down the principle that postal contracts will
come into existence in South Africa upon the dispatch of the acceptance.
91
Thus, in other words, he adopted the expedition theory. Kotzé JP made
clear in his judgment that he accepted the expedition theory as a result of its

83 Fern Gold Mining (note 40) at 138.
84 1902 TS 128.
85 (1902) 19 SC 482.
86 1921 CPD 244.
87 1921 CPD 244 at 256–258.
88 At 258–261.
89 At 261–262, where the judge specifically referred to inter alia Adams v Lindsell and Dunlop v
Higgins. He further noted that American and Scots law follow the English rule, at 262–263, 266.
90 1921 CPD 244, at 263–264.
91 At 266. See also Searle J’s general endorsement of this approach at 276.
“practical convenience”92 and because it is in the best “interest of commerce

and the activities of men in their dealings and intercourse with one another”.93
This justification followed the express recognition by the judge that the
information theory is theoretically the soundest one.94
The Appellate Division in Kergeulen Sealing & Whaling Co Ltd v Com-
missioner for Inland Revenue95 seemingly confirmed the adoption in the
Cape Explosive Works case of the expedition theory for postal contracts.
96
Since then, it has become an established principle of South African law.
However, South African courts have been reluctant to extend the operation
of the expedition theory beyond the narrow limits identified in Cape
97
Explosive. Apart from postal contracts it has been applied to contracts
98 99
concluded by telegram and telefax. Although the expedition theory was
100
initially applied to telephonic communication as well, the courts have since
rejected this approach and applied the information theory to such instances,
101
in line with the general default position. Most recently the Supreme Court
92 At 266.
93 At 265.
94 At 264–265.
95 1939 AD 487 (henceforth Kergeulen). There is some dispute as to whether Kergeulen can be
read as binding confirmation of the expedition theory in cases concerning postal contracts.
Some commentators have argued that the confirmation of Cape Explosive in Kergeulen was
obiter since the latter case did not involve a true postal contract as contemplated in Cape
Explosive: see Flemming J’s opinion in Hawkins v Contract, Design Centre (Cape Town) 1983
(4) SA 296 (T) at 300–301; J P Vorster, “Waar kom ‘n kontrak inter absentes gesluit tot stand?”
1984 TSAR 196; Van der Merwe et al, Kontraktereg, 67 (noting that the confirmation may have
been obiter); contra Kerr, Contract, 118–119.
96 A to Z Bazaars (Pty) Ltd v Minister of Agriculture 1975 (3) SA 468 (AD) at 476; see also Kerr,
Contract, 120.
97 Cape Explosive Works (note 87) at 266 (“we should now lay down that, where in the ordinary
course the Post Office is used as the channel of communication, and a written offer is made, the
offer becomes a contract on the posting of the letter of acceptance”).
98 Yates v Dalton 1938 EDL 177; Christie, Contract, 85–87; Kahn (1955) 72 SALJ 246 at 263–266.
99 Ex parte Jamieson: In Re Jamieson v Sabingo 2001(2) SA 775 (W). Note, however, the comment
in Van der Merwe et al, Kontraktereg, 71 that Willis J’s application of the expedition theory to
telefax cases is “neither convincing nor authoritative” and the references in note 129 to English
cases which treated telefax communication as instantaneous and thus subject to the “normal”
information theory. T Pistorius, “Formation of Internet contracts: an analysis of the contractual
and security issues” (1999) 11 SA Merc LJ 282 at 288 argues, however, that modern technology
has indeed brought telefax communication closer to postal contracts than instantaneous
communication such as telephone and that the relevant English cases should therefore be read
as being “obsolete”. It follows that, in her view, the expedition theory was correctly applied to
telefax cases in the Jamieson case.
100 Wolmer v Rees 1935 TPD 319; C Turpin, “Acceptance of offer: instantaneous communication”
(1956) 73 SALJ 77; Kahn (1955) 72 SALJ 246 at 267.
101 Tel Peda Investigation Bureau (Pty) Ltd v Van Zyl 1965 (4) SA 475 (E) confirmed as the correct
approach in S v Henckert 1981 (3) SA 445 (A); M C J Olmesdahl, “Unheralded demise of
Wolmer versus Rees” (1984) 101 SALJ 545; A J Kerr, “Contracts by telex and by telephone:
of Appeal has (indirectly) cast doubt on the use of the expedition theory in
postal contracts. In Kaap Suiwelkoöperasie Bpk v Louw102 the court simply
applied the information theory103 in a postal contract context, without any
reference to the expedition theory. In that case the respondent’s membership
in the appellant’s co-operative at a particular date depended on whether
agreement had been reached between the parties as to the date of resigna-
104
tion of the respondent. The respondent had sent several letters to the
appellant in which he conveyed his wish to resign at the earliest possible
105
date. The appellant accepted this request (characterised by the court as an
106
offer of early resignation ) at its annual general meeting on 11 and 12
107
August 1992. Such acceptance was communicated to the respondent in a
108 109
letter dated 31 August 1992. Despite the clear postal nature of the case,
the court came to the conclusion that an agreement had come into existence
regarding termination of the respondent’s membership after receipt by the
110
respondent of the appellant’s letter of 31 August 1992. The statement that
111
the contract only came into existence after receipt of the letter and not
upon receipt seems to suggest that the court had the information theory in
mind rather than the reception theory.112 However, irrespective of whether
the court applied the information theory or the reception theory, the
important point to note is that the court did not apply the expedition theory.
when and where entered into” (1982) 99 SALJ 642; E Kahn, “Contracts by telephone” (1966) 83
SALJ 5; P M Nienaber, “Vonnisbespreking: Tel Peda Investigation Bureau (Pty) Ltd v Van Zyl,
Easten Cape Division, 6 November 1964” (1965) 28 THRHR 67.
102 2001 (2) SA 80 (SCA).
103 It is not completely clear from the judgment whether the court applied the information theory
or the reception theory. Van der Merwe et al, Kontraktereg, 67 n 101 seem to suggest that the
reception theory was applied. However, for the reasons set out below, I think that the inform-
ation theory was applied.
104 At para 20.
105 At para 24.
106 At para 24.
107 At para 17.
108 At para 17.
109 From the judgment it seems that “the Post Office [was] used as the [exclusive] channel of
communication” (in the words of Cape Explosive Works (note 86) at 266), Kaap
Suiwelkoöperasie (note 102) at paras 1, 11–17.
110 At paras 24 - 26.
111 At para 25.
112 This conclusion seems to me to be strengthened by the court’s emphasis on the respondent’s
knowledge of the acceptance in para 25.
(3) Justification and problems

Many reasons have been advanced for using the expedition theory to deter-
mine the time and place of inter absentes contracting. Most of these illustrate
the struggle to justify a departure from strict adherence to consensus as the
basis of contractual liability. One of the first reasons advanced was that by
using the post to make the offer, the offeror by implication authorises the
offeree also to use the post for her acceptance. Consequently, the Post Office
became the agent of both parties, and as soon as the offeree mailed her
acceptance the offeror became aware of it through his agent, the Post
113
Office. This reasoning was examined and expressly rejected in South Africa
114
in the Cape Explosive Works case. However, implied authorisation has
remained an important rationale behind the use of the expedition theory for
115
postal contracts. It has at times been linked to the principle that the offeror
116
may dictate the method of acceptance. When the offeror uses the post the
offer contains an implied term, that the posting of the acceptance will suffice
117
to create a contract. Commentators have criticised this reasoning for being
118
based on an unjustifiable fiction.
Another reason, which has been advanced in both South Africa and
Scotland, is the perceived practical convenience of adopting the expedition
theory in cases involving postal contracts.119 There can be no doubt that this
convenience is experienced particularly on the part of the offeree.120 It is
113 Thomson v James at 11; Gardner (1992) 12 Oxford JLS 170 at 173; Kahn (1955) 72 SALJ 246 at
256; Huntley, Contract, 136; Walker, Contract, para 7.63.
114 Cape Explosive Works (note 86) at 262. See also the criticism of this rationale in Scots law in
McBryde, Contract, 159–160; Huntley, Contract, 136; Walker, Contract, para 7.63.
115 Lubbe & Murray, Contract, 68; Gloag, Contract, 34.
116 Lubbe & Murray, Contract, 68; Gloag, Contract, 34.
117 Lubbe & Murray, Contract, 68; Gloag, Contract, 34; Van der Merwe et al, Kontraktereg, 67; De
Wet & Van Wyk, Kontraktereg, 39–40; Kahn (1955) 72 SALJ 246 at 256–257; Anonymous,
“Smeiman revisited” (1955) 72 SALJ 308 at 309; SME, vol 15, para 644; Gloag, Contract, 34;
Huntley, Contract, 136.
118 Van der Merwe et al, Kontraktereg, 67; De Wet & Van Wyk, Kontraktereg, 39–40; Anonymous
(1955) 72 SALJ 308 at 309; Huntley, Contract, 136.
119 Cape Explosive at 265–266; Kergeulen at 504–505; Gardner (1992) 12 Oxford JLS 170 at 173–
176; Huntley, Contract, 136; Gloag, Contract, 34; Walker, Contract, para 7.63.
120 A to Z Bazaars (note 96) at 476; Van der Merwe et al, Kontraktereg, 67; De Wet & Van Wyk,
Kontraktereg, 41; Gardner (1992) 12 Oxford JLS 170 at 173–174, 177; Kahn (1955) 72 SALJ 246
at 256; Report on Formation of Contract (Scot Law Com No 144, 1993), para 4.5. Peter
Goodrich has argued that the postal rule had its origin in early marriage contracts in English law.
The protection it affords specifically to the offeree thus represents the “law’s protection of
women up until the point of entry into the effective completion of the marriage contract”. Such
protection may now seem arbitrary “only because of the erasure of the face of the offeree; it has
been forgotten that it was a woman who put a letter of acceptance in the post” (P Goodrich,
“Habermas and the postal rule” (1996) 17 Cardozo LR 1457 at 1470, 1472).
convenient for her that when she mails her acceptance she may be certain
that a contract has come into existence. In this sense, the adoption of the
expedition theory also has a risk-allocation function. The risk of loss of the
letter of acceptance in the mail is placed on the offeror.121 This may be seen to
be justified in view of the fact that it was the offeror who initiated
negotiations through the mail.122 The rule also protects the offeree against a
revocation of the offer by the offeror prior to the acceptance reaching the
123
offeror, but subsequent to the declaration of such acceptance. Since
revocation of an offer is always possible in English law as a result of the
requirement of consideration, there is a perceived need to protect the
offeree in such instances. The expedition theory affords this protection. In
South African and Scots law this need is less pronounced. Since neither of
these systems require consideration as an element of contract formation it is
124
much easier to create irrevocable offers. Furthermore, the expedition
theory is convenient in that the time and place at which the letter of
acceptance was committed to the postal service can be objectively
determined, and consequently also the time and place of contracting.125 Yet
121 McBryde, Contract, 159; Walker, Contract, para 7.64; Van der Merwe et al, Kontraktereg, 68;
Gardner (1992) 12 Oxford JLS 170 at 74; Anonymous (1955) 72 SALJ 308 at 309.
122 McBryde, Contract, 159; Van der Merwe et al, Kontraktereg, 69; De Wet & Van Wyk,
Kontraktereg, 41; Anonymous (1955) 72 SALJ 308 at 309.
123 MacQueen & Thomson, Contract, 53.
124 In Scotland offers can be made irrevocable by a mere promise to such effect by the offeror. This
is because Scots law recognises a promise as a binding obligation: Littlejohn v Hadwen (1882)
20 SLR 5; A & G Paterson Ltd v Highland Railway Co 1927 SC (HL) 32; Gloag, Contract, 25;
MacQueen & Thomson, Contract, 45. In South Africa the position seems to be that offers
cannot be made irrevocable by a mere declaration to such effect on the part of the offeror.
Agreement, i.e. offer and acceptance, on the issue of irrevocability is still required before the
main offer will be irrevocable. The absence of a requirement of consideration, however, opens
up the possibility that agreement can be reached on the irrevocability of the main offer without
any quid pro quo from the offeree. See, however, the South African case of Building Material
Manufacturers Ltd v Marais 1990 (1) SA 243 (O) which Christie, Contract, 59 reads as authority
for the proposition that offers can be made irrevocable by mere declaration in South African
law. Van der Merwe et al, Kontraktereg, 79 n 179, argue that the offer to keep the main offer
open in that case was accepted by mere receipt of the former in line with the intention of the
parties. De Wet has also noted that this justification for the adoption of the expedition theory
should be treated with circumspection, since the moment the contract comes into existence and
the moment up to when the offeror can revoke his offer should not be equated as this
justification by implication does. According to De Wet these moments differ. While a contract
will generally come into existence when the offeror learns of the acceptance, he can only retract
his offer up to the moment when the offeree starts declaring her acceptance, which even
precedes the dispatch of the acceptance (De Wet & Van Wyk, Kontraktereg, 33, 40).
125 De Wet & Van Wyk, Kontraktereg, 39 n 135; Kahn (1955) 72 SALJ 246 at 256. This also helps to
prevent fraud since the offeror will not be able to avoid the contract by simply stating that he did
not receive the acceptance when in fact he did: Gardner (1992) 12 Oxford JLS 170 at 174.
other commentators have suggested that the “real” reason for adopting the
expedition theory in these instances is historical in nature.126
One final explanation that deserves mention is that contract formation at
the moment of posting may be based on an objective standard of contractual
liability in the form of reasonable reliance.127 The argument here, especially
in South African law, is that the use of the expedition theory for postal con-
tracts must be seen as a corrective principle basing liability on objective
128
grounds because the will theory of contract yields harsh or unfair results. If
the reliability of the postal service is accepted it may be said that the offeree
has a legitimate expectation that the negotiations are finalised at the moment
when the acceptance is posted. Hence, the expedition theory bases contrac-
129
tual liability on that reliance.
Despite the justifications formulated for the adoption of the expedition
theory in postal contract cases, this theory does not solve all problems
relating to offer and acceptance inter absentes. When a letter of acceptance
130
does not reach the offeror due to error on the part of the offeree, no
131
contract seems to come into existence. This seems to be an exception to the
application of the expedition theory. However, it is difficult to see how such
situations should be treated in light of the expedition theory. Is there a
126 Gardner (1992) 12 Oxford JLS 170 at 176, 178–192 (where it is noted that the development of
the postal acceptance rule in English law can be explained with reference to historical factors
such as the popular perception of posting as being equivalent to delivery following the postal
reforms of the 1840s in England, the questioning of that perception following the introduction
of telephones in the 1870s and the development of the concept of limited liability companies
and associated mass company flotations of the 1860s and 1870s); Van der Merwe et al,
Kontraktereg, 68. Goodrich (1996) 17 Cardozo LR 1457 at 1473, on the other hand, has argued
that the rule had its origin in early marriage contracts in English law and that the protection it
affords to the offeree “recollects an institutional history, an unconscious structure within which
it would be ethically absurd to allow the man to escape his duties and dishonourable in the
extreme to leave a woman in suspense or unprotected”.
127 Lubbe & Murray, Contract, 67–68; Van der Merwe et al, Kontraktereg, 69; Lubbe, in Reid &
Zimmermann, History, vol 2, 36, 38.
128 Also see Goodrich (1996) 17 Cardozo LR 1457 at 1466–1467 (“While the rule of full communi-
cation suggests a linguistically unrealistic ideology of consensus, the postal rule introduces the
objective possibility of the non-arrival of the letter, and faces the consequences of that failure of
delivery or non-communication which constantly threatens to undermine the subjective theory
of contracts”).
129 Lubbe & Murray, Contract, 67–68; Van der Merwe et al, Kontraktereg, 69; Lubbe, in Reid &
Zimmermann, History, vol 2, 36, 38. See, however, the doubt cast on the reasonableness of this
reliance in Report on Contract Formation (Scot Law Com No 144, 1993), para 4.5.
130 For example, if the offeree incorrectly addressed the letter.
131 Kahn (1955) 72 SALJ 246 at 257; Christie, Contract, 84; Kerr, Contract, 120; Levben Products
(Pty) Ltd v Alexander Films (SA) (Pty) Ltd 1959 (3) SA 208 (SR); McBryde, Contract, 159;
Walker, Contract, para 7.64 (noting, however, that there seems to be no Scottish case to confirm
such outcome).
general exception to the application of the expedition theory to postal

contracts in all instances where the offeree makes a mistake in committing
the acceptance to the postal service?132 Must a court therefore also enquire
into the correctness of the acceptance’s expedition before concluding that the
contract has come into existence at the moment of dispatch? Alternatively,
does the exception only apply to cases where the acceptance was in fact not
received? If this is the case, what is the legal position between posting and
receipt or non-receipt, if the applicable theory can only be determined after
the latter event?
Another significant problem following the adoption of the expedition theory
is the effect of communications subsequent to the dispatch of the acceptance
133
and overtaking the latter. In South African law it seems, as a matter of logic,
that such overtaking communication cannot neutralise the acceptance so that
134
a binding contract has come into existence. However, such logical conclu-
sion is not beyond doubt and the Supreme Court of Appeal has questioned
135
whether this should be the appropriate result. In Scotland the position
seems to be that the overtaking communication is effective, which presents a
logical conundrum since the expedition theory holds that the contract comes
into existence at the time when the acceptance is posted.136
132 The court in Levben Products at least seems to suggest that such exception only occurs where
the mistake is of a serious nature, causing non-delivery of the acceptance. McBryde argues that
the postal rule should not apply to cases where the offeree made a mistake in dispatching the
acceptance (Contract, 159). See notes 61–62 and accompanying text above on whether the
operation of the postal rule is qualified in Scots law by the requirement that the acceptance
must in fact be received. A similar mistake analysis seems to be employed in Scots law to
determine the effectiveness of a revocation of a postal offer prior to the dispatch of the
acceptance. See note 46 above for a discussion of Burnley v Alford where it was held, in a postal
contract context, that the revocation of an offer was effective despite the dispatch of an
acceptance after receipt of the revocation, but prior to knowledge of that revocation reaching
the offeree. It seems that mistake on the part of the offeree resulting in his lack of knowledge of
the revocation, and the absence of mistake on the part of the offeror in this regard, played a
significant role in the court’s conclusion. See also Thomson v James at 11; MacQueen &
Thomson, Contract, 50–51.
133 For example, if the offeree telephones the offeror after the former has posted her acceptance
but before the latter has received it, and informs the offeror that she withdraws her acceptance.
134 Kerr, Contract, 121; Hutchison, in Zimmermann & Visser, Southern Cross, 179; this was also
the conclusion of the court a quo in A to Z Bazaars (Pty) Ltd v Minister of Agriculture 1974 (4)
SA 392 (C).
135 A to Z Bazaars 1975 (3) SA 468 (D) at 476; see also Christie, Contract, 84; Kahn (1955) 72 SALJ
246 at 261.
136 See notes 63–66 and accompanying text above.
(4) The PECL approach

Article 2:205(1) PECL states that the contract will be concluded once “the
acceptance reaches the offeror”. When this provision is read with Article
1:303 PECL, it becomes clear that the reception theory as defined above has
been adopted. Article 1:303(3) PECL provides that “a notice” reaches the
offeror when it is delivered to his address; hence actual knowledge of the
acceptance is not required. This position is confirmed in the comment to
Article 1:303 PECL where it is stated that “[i]t is not necessary that the notice
should actually have come to the addressee’s attention”.137 Paragraph (6)
furthermore states that “notice” as used in the Article includes the communi-
cation of an acceptance, thereby removing any doubt that the position stated
in Article 1:303 PECL applies to contract formation as well.
Article 2:205(2) PECL confirms that the above position also holds true for
cases where acceptance is in the form of conduct. However, Article 2:205(3)
PECL creates an important exception to the general application of the
reception theory. It states that if by virtue of the offer, or established practice
between the parties, or usage, acceptance may take another form without
notice to the offeror, the contract will come into existence when the offeree
starts to express her acceptance in that form. This exception clearly allows the
offeror to waive the requirement of a notice of acceptance. It is interesting to
note that while Article 2:205 PECL thus provides for something less than
notice of acceptance to the offeror, it does not provide for something more
than such notice for the formation of a contract. From Article 2:205 PECL
alone it would therefore seem that the offeror cannot require actual know-
ledge of the acceptance on his part before the contract will be concluded. It
is submitted, however, that this option is open to the offeror. PECL is gener-
138
ally non-mandatory in nature and thus allow for the exclusion or derogation
139
of any of their non-mandatory provisions; and there is no reason to assume
that Article 2:205 should be mandatory. Alternatively, the offeror may merely
state actual knowledge of acceptance as an essential term or condition of the
proposed contract with the result that no contract will come into existence
140
before such condition has been fulfilled.
137 This is in curious conflict with the statement in the “Survey of Chapters 1–9”, published in the
first volume of PECL (at xxxi), that “[t]he contract will become binding once the acceptance …
has become known to the offeror”.
138 “Survey of Chapters 1–9”, xxix.
Although it follows logically from the adoption of the reception theory that
the offeree can neutralise her acceptance by an overtaking communication,
PECL expressly confirms the effectiveness of such withdrawal.141 It further-
more states that, should the acceptance reach the offeror at the same time as
the withdrawal, the acceptance will not be effective.142
(5) Comparison
From the aforesaid it is clear that PECL differs significantly from the posi-
tion in Scotland and South Africa regarding inter absentes contracting. As a
point of departure they do not differentiate between inter absentes and inter
praesentes contracting. For both scenarios they adopt the reception theory
requiring only formal delivery of acceptance to the offeror for contract
formation. No exception is made for postal contracts.
I would suggest that the approach adopted by PECL is superior in a
number of ways to the position in South Africa and Scotland. As a point of
departure it entails a single default rule for all instances, subject only to
variation by the parties themselves. This approach does away with the need
for tenuous classifications of various forms of communication in order to
establish the applicable rule of contract formation. As a number of
commentators have indicated, it may not be particularly easy (or even
possible) to classify more recent forms of communication into the categories
of instantaneous and non-instantaneous.143 The adoption of a universal rule
that does not rely on such distinctions is clearly preferable. Such an approach
has the added advantage of being perfectly clear, hence advancing legal and
commercial certainty.144 In adopting a universal rule, PECL’s approach seems
to accord much better with the “predilection for reasoning on general prin-
ciple” of both South African and Scots law than “a more casuistic approach”,
145
in which a rule seems to “focus on the postal contract as a special case”.
One of the biggest changes brought about by replacing the postal rule and
the information theory with the reception theory is that the risk of the
acceptance not reaching the offeror is largely shifted to the offeree. This new

143 Gardner (1992) 12 Oxford JLS 170 at 192–194; Pistorius (1999) 11 SA Merc LJ 282 at 288–290;
L Davies, “Contract formation on the Internet: shattering a few myths” in L Edwards & C
Waelde (eds), Law and the Internet: Regulating Cyberspace (1997), 104–115; Christie,
Contract, 87–88; Van der Merwe et al, Kontraktereg, 71–75.
144 For an affirmation of the importance of these factors in contract law, see Brand JA’s remarks in
South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA) at para 27.
145 Lubbe, in Reid & Zimmermann, History, vol 2, 38.
allocation of risk seems to be much more in line with the reality of modern
trade than the allocation under the postal rule and information theory. It is
now incumbent on the offeree to ensure that her acceptance reaches the
offeror’s address. This seems to be reasonable since the offeree is undoub-
tedly better placed to ensure such receipt, and a number of mechanisms are
available to her to confirm delivery.146 Furthermore, since she knows that she
has dispatched her acceptance she can ask the offeror whether he has
received it. None of these mechanisms is available to the offeror, who does
147
not even necessarily know that an acceptance has been dispatched.
Although the reception theory to some extent shifts the risk to the offeree
compared to the postal rule, it does not do so in an unreasonable manner. For
under the reception theory, the offeree merely has to prove the delivery of
the acceptance to the offeror. She does not have to prove, as she would have
to under the information theory, that the offeror has actually become aware
of the acceptance.
PECL does not, however, allocate all risk in the period between dispatch
and receipt to the offeree. The offeree is protected against any revocation of
the offer during this period. Article 2:202(1) PECL states that revocation of
an offer will only be effective if it reaches the offeree before dispatch of the
acceptance. Once the offeree has formulated and dispatched her acceptance
she has the certainty that the offeror can no longer nullify her actions by
revoking his offer.148 This bar on revocation of course places the offeror at a
certain inconvenience: he may not be aware of the dispatch of the acceptance
but is, at the same time, unable to revoke his offer. Thus, he is left in a period
of uncertainty. However, on the one hand, he may opt out of the reception
149
theory; on the other hand, he is protected by the requirement that the
acceptance must reach the offeror within the time limit fixed by the offer or,
150
in the absence of an express time limit, within a reasonable time. It is
important to note in this regard that PECL requires the acceptance to reach
the offeror within a reasonable time and not simply that it must be dispatched
146 Most modern postal services offer delivery confirmation and tracking services by means of
which the addressor can at any moment establish the location of his or her posted item.
147 See Report on Contract Formation (Scot Law Com No 144, 1993), para 4.5.
148 This splitting of the moment of contract formation and revocation of the offer was also advanced
by De Wet as an appropriate way of addressing some of the problems experienced with inter
absentes contracting. De Wet, however, identified the two relevant moments as expedition (for
the purposes of the moment of contract formation; this is in line with the postal rule), and as the
moment the offeree starts to express her acceptance (from which time revocation is no longer
possible): De Wet & Van Wyk, Kontraktereg, 40.
within a reasonable time.151 The risk of an unreasonable delay between

dispatch and receipt is thus placed on the offeree.
A late acceptance152 may, however, still be effective. If the acceptance is
late due to the offeree’s fault, it will not be effective, unless the offeror
notifies the offeree that he consents to the late acceptance: in other words,
unless he waives the time limit fixed in the offer or the reasonable time limit
153
implied by law. A similar result may ensue in South African and Scots law
when an offeror consents to a late acceptance by notice to the offeree. How-
ever, the route to the result is different. The late acceptance will be treated as
a counter-offer that the original offeror can accept with the result of a
contract coming into existence. The moment of contract formation under
this construction will be when the original offeror’s notice of his acceptance
of the late acceptance reaches the original offeree. In contrast, in terms of
PECL the contract is concluded when the original (late) acceptance reaches
the offeror, subject to the offeror’s notice. If the late acceptance is not due to
the offeree’s fault, but to some other delay, a contract will come into existence
at receipt of the late acceptance except if the offeror notifies the offeree that
he considers the late acceptance as ineffective.154 The risk of a delay in trans-
mission is still on the offeree, but a positive duty is placed on the offeror to
communicate the ineffectiveness of the late acceptance to the offeree. In this
way the offeree’s position is somewhat improved. The combination of these
mechanisms ensures the protection of the expectations of both parties. The
offeror can expect to receive an acceptance within a reasonable time, failing
which he has a choice whether he wants to be bound. The offeree will know
whether she dispatched her acceptance in time and, if she did, she can expect
to be bound, or informed if that is not the case; and hence any uncertainty is
reduced to a minimum.
The reception theory places the risks emanating from the offeror’s sphere
of control on the offeror in contrast to the information theory, which places
such risks on the offeree. Once the acceptance has been physically delivered
to the offeror’s address a contract comes into existence and the offeree is
protected. The offeror subsequently bears the risk that such delivery may not
come to his attention. This seems equally reasonable since the offeror is
better placed to reduce such risk. The approach adopted by PECL therefore

152 That is, an acceptance that reaches the offeror after the time limit set by the offer or after an
unreasonable delay.
seems to achieve a much more balanced allocation of risks between the

parties than that achieved currently in Scotland and South Africa.
Another convincing reason for doing away with the postal rule is the
objective approach to contractual liability adopted by PECL.155 The approach
to inter absentes contract formation adopted by PECL is part and parcel of
favouring objective liability. As noted above,156 especially in South African
157
law, the postal rule can be explained as a corrective to the subjective theory
of contractual liability. It thus protects the reasonable reliance of the offeree
that a contract has come into existence. In the light of the otherwise harsh
results that might flow from a strict adherence to the will theory of con-
158 159
tract, this seems a sensible approach to adopt. PECL, however, protects
the offeree’s reliance in a much more fundamental and comprehensive
manner. In fact both parties’ reliance seems to be accommodated in an inte-
grated and balanced fashion throughout the regime adopted by PECL.
D. CONCLUSION
PECL embraces the offer and acceptance model for contract formation
found in most Western legal systems today. In rejecting both consideration
and causa as requirements for contract formation PECL endorses the offer
and acceptance model as the primary and sole vehicle for analysing the parties’
interaction to establish whether, and when, a contract has come into existence.
PECL is closely aligned to both Scots and South African law in this regard.
However, the model developed by PECL is in a number of respects more
refined and distinctively more modern than those found in Scots and South
African law. One specific aspect of PECL’s model that seems significantly
superior to that found in the former two systems is its treatment of inter absentes
contracting, and specifically the absence of the postal rule in that model.
The reception of the postal rule in South African and Scots law has been
described as undesirable and is not viewed in either system as an unqualified
155 Article 2:102 PECL, read with Article 5:101 PECL.

157 Since Scots law adopts a more objective approach to contractual liability, the postal rule does
not serve as a corrective to a subjective approach. However, the development of the postal rule
in Scotland seems to go hand in hand with the recognition of objective contractual liability so
that there is also in Scotland a link between adopting objective contractual liability and
following the postal rule: see Lubbe, in Reid & Zimmermann, History, vol 2, 36; Hogg, Obli-
gations, 21.
158 See Hogg, Obligations, 20; Van der Merwe et al, Kontraktereg, 28–30; Lubbe & Murray,
Contract, 108 ff.
159 See also Goodrich’s remarks quoted above, note 128.
success.160 Certainly the rule is open to much criticism both from practical
and principled perspectives. From the practical side neither the ambit of the
rule nor its relationship to the retraction of offers and acceptances is
altogether clear. From the point of view of principle, the rule does not sit well
with the subjective approach to contract formation followed in South Africa,
and in both systems it seems to represent a departure from reliance on
161
general principles in favour of casuistic rules focusing on special cases. In
England, the rule’s country of origin, these difficulties are counterbalanced
by the need to protect the offeree against an unfair revocation of the offer
and the difficulty in creating irrevocable offers resulting from the doctrine of
consideration. However, neither Scots nor South African law experience
such need or difficulty. Both systems have developed fairly sophisticated
methods to create irrevocable offers.
Despite these misgivings about the reception of the postal rule, it seems to
me that, at least in South Africa, the rule cannot simply be dismissed as a
knee-jerk reaction to commercial developments of a bygone era precipitated
by convenience and certainty in an influential foreign jurisdiction. The
presence of the postal rule points to a different need experienced in South
African law: a corrective to the subjective theory of contract formation.
Under the postal rule, the contract is not based on the true meeting of the
parties’ minds, but rather on the reliance of one of the parties, the offeree.
Scots law in contrast experiences no such need since it accepts an objective
theory of contract formation. It can therefore simply reject the postal rule in
favour of a receipt rule. This is in line with the principle of an objective
determination of consensus as basis of contractual liability linked to the
requirement that acceptance be communicated to be effective. South
African law, in contrast, cannot at present simply reject the postal rule. Its
place would then be taken by the default information theory with resultant
hardship to the offeree. The South African model would have to be replaced
in its entirety by that adopted by PECL. As I have argued above, that model
seems to protect the interests of both parties effectively. It represents a well-
balanced regime for all forms of contracting, treating inter praesentes and
inter absentes contracting alike. More importantly, at least for the South
African context, it seems to protect a more realistic reliance on the part of the
offeree, namely that the offeror will take note of an acceptance once it has
been delivered.
160 Du Plessis (2003) 78 Tulane LR 219 at 232–233.

161 See Lubbe, in Reid & Zimmermann, History, vol 2 at 38.
Overall, the offer and acceptance model adopted in PECL shows more
similarity than difference compared to those found in Scots and South
African law. However, from a comparative point of view, the importance lies
in the difference. In this respect I would suggest that the PECL model
represents an evolution of the Scots and South African models, rather than
any radical departure from them. As such it provides Scots and South African
lawyers with the foretaste of a possible and, I would suggest, highly desirable
future.
4 The Battle of Forms
A D M Forte
A. THE CASUS BELLI

B. NATURE OF THE BATTLE: CONSENSUS OR CONTENT?
C. THINKING INSIDE THE BOX: ORTHODOX FORMATION
THEORY, OBJECTIVITY AND THE BATTLE OF FORMS
D. FIGHTING THE BATTLE OF FORMS UNDER SCOTS LAW: A
CRITIQUE
E. THINKING OUTSIDE THE BOX: MODEL SOLUTIONS TO THE
BATTLE OF FORMS
(1) The UCC
(2) CISG
(3) PICC
(4) PECL
F. PECL AS THE WAY FORWARD?
A. THE CASUS BELLI

A battle of forms arises where each of the parties to what they at least
perceive as a contract have employed their own standard terms of trading or
business. In the case of an anticipated sale of goods, the buyer’s purchase
order and the seller’s acknowledgment of order will be on terms drafted in
advance: perhaps by a representative trade association or by the parties’
respective legal advisers. If all goes well the goods will be dispatched and
paid for and nothing more will be heard of the matter. If this happy scenario
does not ensue, however – perhaps, for example, the buyer feels that the
goods do not conform to specification or are defective in quality – the parties
may turn to their respective standard forms and point to terms therein which
they consider to be resolutive of the dispute. In particular the seller may
stand on a clause in its acknowledgment of order which excludes liability for
1
the non-conformity alleged and point to another which neutralises any
1 In Scots law a business-to-business contract concluded on the standard terms of one of the
contracting parties does not prevent exclusion of liability for breach of contract so long as fair and
reasonable: Unfair Contract Terms Act 1977, s 17. However, if both parties deal on the basis of
their respective standard forms, and those forms can be read together, it would seem that the Act
98
the battle of forms 99
contrary term in the buyer’s purchase order. For example:

We shall not be liable in respect of defects and we shall not be liable for loss of
profits, detention or other consequential damage or expenses. It is a term of this
acknowledgment of order that it shall represent the entire agreement between the
Purchaser and the Vendor.
Not to be outdone the buyer will point to a counteractive term of its own:
The Company recognises that the Vendor may use its own acknowledgment of
order form. Therefore any provisions in the form of acceptance used which
modify, conflict with or contradict any provision of the contract or order shall be
deemed to be waived unless expressly agreed to in writing by the Company and
2
signed by an authorised representative.
Both of these clauses paramount are of course anticipatory. Buyer and seller
have realised that some of their respective standard forms may clash.
Therefore both seek to neutralise such differences by asserting the exclusive
application of their contract terms. The buyer states that its terms will prevail
no matter what the seller’s terms are. The seller states that the converse will
obtain. Both parties are content to accept that they have a contract and pro-
ceed to performance. The seller delivers the goods to the buyer and the latter
pays for these. Then the dispute arises and only at this stage do the differ-
ences in the two sets of standard forms assume importance.
B. NATURE OF THE BATTLE: CONSENSUS OR CONTENT?

From a United Kingdom perspective there are, broadly speaking, two possible
approaches to the battle of forms. The first is to confine one’s thinking safely
within the box of orthodox or classical formation theory. This approach em-
phasises the central requirement of consensus or agreement and ascertains
its presence or absence by reference to the conventional constructs of offer
and acceptance. The buyer’s purchase order is taken to represent its offer to
acquire goods from the seller. But because some (or even all) of the general
conditions of the seller’s acknowledgment of order form conflict with or vary
does not apply. Under recent proposals for reform of the law on unfair contract terms, a
distinction will be observed between business contracts and “small business contracts”. The
former will remain, in effect, subject to the current rules; the latter, however, will be treated in a
more protectionist manner than at present: Report on Unfair Terms in Contracts (Law Com No
292, Scot Law Com No 199, 2005), 57–77. It does not appear to be the case, however, that the
proposed legislation addresses the situation where both parties use standard forms.
2 These examples are based on the terms used by buyer and seller in Uniroyal Ltd v Miller & Co
Ltd 1985 SLT 101.
the terms in the offer, the second form cannot be regarded as an acceptance
of the first. Instead, the seller’s form represents its rejection of the buyer’s
offer and may be treated by the latter as a counter-offer. For brevity’s sake,
this is often referred to as a “qualified acceptance”.3 At this stage, therefore,
after incongruent forms have been exchanged, the “acceptance” does not
mirror image the offer and so there is no contract concluded between the
parties.
C. THINKING INSIDE THE BOX: ORTHODOX FORMATION

THEORY, OBJECTIVITY AND THE BATTLE OF FORMS
4
What has been described as the “classic Scots authority” on the battle of
5
forms is an Outer House case – Uniroyal Ltd v Miller & Co Ltd. Whether it
merits the accolade of “authority” is, however, debatable and some
6
examination of the cases generally is necessary at this point. The first of these
decisions is not Scottish, but because of its importance to the debate on battle
of forms and since it was referred to in argument in both of the Scottish cases
which will be discussed, some mention here is helpful.
Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd7 involved
the sale by the plaintiffs, Butler Machine Tool, of an item of machinery
known as a plane-miller to the defendants, Ex-Cell-O. The sequence of
events was as follows. On 23 May 1969 the seller quoted a price for the sale of
a plane-miller. The reverse side of this form contained sixteen conditions, of
which the two relevant to the litigation are reproduced here:
[1] All orders are accepted only upon and subject to the terms set out in our
quotation and the following conditions. These terms and conditions shall prevail
over any terms and conditions in the buyer’s order.
[3] Prices are based on present day costs of manufacture and design and having
3 Wolf and Wolf v Forfar Potato Co 1984 SLT 100. For a detailed criticism of the construct of the
qualified acceptance, see A D M Forte, “The qualified acceptance: a revisionist view of the
fundamentals of commercial contract formation in Scots law” (1995) 1 Contemporary Issues in Law
43. For a challenging analysis of the mirror-image theory of contract formation, see M M Siems,
“Unevenly formed contracts: ignoring the mirror of offer and acceptance” (2004) 12 ERPL 771.
4 M Hogg and G Lubbe, “Formation of contract”, in Zimmermann, Visser & Reid, Mixed Legal
Systems, 34–65 at 58, n 159.
5 1985 SLT 101.
6 For a more detailed examination of this case as a decision on both battle of forms and letters of
intent see A D M Forte & H L MacQueen, “Contract procedure, contract formation and the
battle of forms” (1986) 31 JLSS 224. Note also, in connection with battle of forms, McBryde,
Contract, 153–156.
7 [1979 1 All ER 965. Note also OTM Ltd v Hydranautics [1981] 2 Lloyd’s Rep 211.
regard to the delivery quoted and uncertainty as to the cost of labour, materials,
etc during the period of manufacture, we regret that we have no alternative but to
make it a condition of acceptance of order that goods will be charged at prices
ruling upon date of delivery.
On 27 May 1969 the buyer placed a written order for the machine employing
its own standard form. This stated that its terms and conditions were to apply.
There were several terms which differed from those in the seller’s quotation;
and at the bottom of the buyer’s order form was a tear-off slip which read:
Acknowledgment: Please sign and return to Ex-Cell-O. We accept your order on
the terms and conditions stated thereon – and undertake to deliver by – Date –
signed.
The seller responded to the buyer’s order form on 5 June 1969, affirming that
delivery of the machine would be as per its quotation of 23 May, and
returning, dated and signed, the buyer’s acknowledgment of order form. By
the delivery date, however, the seller maintained that costs had risen and so it
claimed more than the price originally quoted under reference to the price
variation provision in the quotation of 23 May. The buyer refused to pay the
revised figure and the seller raised an action for payment.
On an analysis of these facts, the majority in the Court of Appeal found
that the seller’s quotation of 23 May was an offer; but that as the buyer’s order
of 27 May contained terms which varied those in the offer, it was not an
acceptance thereof but a counter-offer which the seller accepted by
returning the acknowledgment of order form duly signed. That being so, a
contract was concluded on the buyer’s terms and conditions. However, the
judges were most certainly not ad idem as to why the buyer’s terms
triumphed. Lord Denning MR, thinking outside the box, favoured an holistic
approach to the forms passing between parties. One should abandon the
orthodox contract formation analysis of such documents; establish if there is
8
agreement on the material points; and, if there is, determine which of the
remaining terms are congruent and which conflict. Conflicting terms would
be knocked out, and any remaining gaps filled by implying appropriate terms.
8 Lord Denning expressed much the same view earlier in Port Sudan Cotton Co v Govindaswamy
Chettiar & Sons [1977] 2 Lloyd’s Rep 5 at 10: “I do not much like the analysis in the text-books of
inquiring whether there was an offer and acceptance, or a counter-offer, and so forth. I prefer to
examine the whole of the documents … and decide from them whether the parties did reach an
agreement upon all material terms in such circumstances that the proper inference is that they
agreed to be bound by those terms from that time onwards”. He repeated this in Gibson v
Manchester City Council [1978] 1 WLR 520 at 523. On appeal, however, the House of Lords took
the opportunity to disapprove of this approach generally, though conceding that there could be
“exceptional” circumstances where it might be appropriate: [1979] 1 WLR 297.
Consequently, how one classified the signed acknowledgment of order was

irrelevant and unnecessary for a finding that a contract existed. Lawton and
Bridge LJJ, on the other hand, were of a distinctly more conservative view.
For the former the battle of forms was one to be fought “on classical 18th
century lines”. The latter, in agreement, made plain that a battle of forms was
governed by the “classical doctrine” of contract formation in which “a
counter-offer amounts to a rejection of the offer and puts an end to the effect
of the offer”.
These two approaches, the holistic and the classical or orthodox, are of
course radically different. The former (that of Lord Denning) is a two-stage
process which asks first if the parties have a contract, and answers this by
considering the forms exchanged in order to discover if agreement has been
reached on “all material points”. This usually produces a finding that “there is
a contract as soon as the last of the forms is sent and received without
9
objection being taken to it”. If this is indeed the case, the second stage is to
elicit the terms of this contract. Orthodox analysis, on the other hand,
subsumes content within the formation issue and any resultant contract will
be concluded on the terms imposed by the party who fires off the last form.10
The more radical approach espoused by Lord Denning, therefore, divorces
content from formation and does not produce an inevitable finding that the
party who fires the last shot must win. But it is not simply a matter of choosing
one or other of these approaches, which, in the instant case, produced the
same result. Rather the application of orthodox contract formation analysis to
a battle of forms, with its implicit stress on objectively determined
agreement, carries with it the risk that no contract may be found to exist: a
risk that a court faced with a dispute between commercial parties might be
11
reluctant to run. Indeed, such a finding might have been produced in Butler
Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd.
As already noted, the seller’s letter of 5 June 1969, enclosing the buyer’s
acknowledgment of order, expressly stipulated that the plane-miller was to
9 At 968 per Lord Denning MR.

10 Note also British Road Services v Arthur Crutchley [1968] 1 All ER 811.
11 Objectivity can be understood in different senses. The sense in which the objective analysis
referred to in the text is to be understood is what has been termed “detached objectivity” – i.e.,
the perspective of a reasonable person looking at what has transpired: see W Howarth, “The
meaning of objectivity in contract” (1984) 100 LQR 265. Cf J Vorster, “A comment on the
meaning of objectivity in contract” (1987) 103 LQR 274. Note also Lord Steyn, “Contract law:
fulfilling the expectations of reasonable men” (1997) 113 LQR 433. Just as this approach may
result in a finding of no contract, so too, paradoxically, it carries the risk that a contract may be
deemed to have been concluded contrary to the expectations, intention, and business procedures
of the contracting parties: Forte and MacQueen (1986) 31 JLSS 224 at 228.
be supplied “in accordance with” its quotation of 23 May. From the seller’s
perspective, therefore, this letter was intended to reinstate the standard
terms in its quotation of 23 May. If, however, the Court of Appeal agreed with
this submission, it meant that on receipt of that letter plus the enclosed
acknowledgment of order form, the buyer now had two documents before it
which were mutually contradictory. The first, the seller’s letter, was a counter-
offer; the second, the buyer’s form, was its own earlier counter-offer to
purchase the goods – albeit duly signed by the seller. On an objective
12
analysis of this highly ambivalent situation, where the offeree holds what
may be construed as a counter-offer, or, possibly an acceptance, together with
what clearly is a counter-offer, both of which arrived at the same time, it is
13
hard to disagree with Bridge LJ that “the parties never were ad idem”. To
avoid such a result the wording of the letter of 5 June was construed
restrictively as referring only to the price and identity of the machine to be
supplied and not to the standard terms and conditions on the reverse of the
quotation of 23 May. The somewhat procrustean moulding of the facts to
produce a finding that there was a contract in this case suggests that orthodox
contract formation analysis affords a rather crude model for solving the battle
of forms;14 and that of Lord Denning appears the more attractive. It may be
objected that in Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England)
Ltd Lord Denning did not actually adhere to his own model since the parties
did not agree on a “material point”, namely price.15 This is not a persuasive
stance. The seller quoted a price and the buyer accepted that figure. What
the latter objected to was the price variation clause. Consequently, the
dispute was only concerned with whether or not a term permitting variation
of the agreed price should apply.
Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd was refer-
red to in argument in two Scottish cases which may be thought of as involving
in some respects a battle of forms; though in both the judges did not regard
them as such. The first of these is a decision of the Sheriff Principal of North
16
Strathclyde: Roofcare Ltd v Gillies. There the pursuers, Roofcare Ltd,
12 In the sense of detached objectivity.

13 At 970.
14 In New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd [1975] AC 154 Lord Wilberforce
observed at 167 that “English law, having committed itself to a rather technical and schematic
doctrine of contract, in application takes a practical approach, often at the cost of forcing the facts
to fit uneasily into the marked slots of offer, acceptance and consideration” (emphasis ADMF).
15 E McKendrick, Contract Law: Text, Cases, and Materials, 2nd edn (2005) (henceforth McKendrick,
Contract Law: Text, Cases, and Materials) at 99.
16 1984 SLT (Sh Ct) 8.
quoted for roofing repairs to the house of the defender, Gillies. The quota-
tion contained this condition:
This quotation is made subject to the undernoted terms and conditions and no
alterations, exclusions, additions, or qualifications to the quotation and specifica-
tion will be made unless confirmed in writing by Roofcare.
Roofcare Ltd’s terms and conditions did not oblige it to make the premises
wind and watertight. But Gillies’ written acceptance of the quotation stipu-
lated that the repairs had to do so. This elicited no response from Roofcare
Ltd. Gillies then ordered Roofcare Ltd to do the job. After the repairs were
effected, however, Gillies refused to pay, alleging that leaking still occurred.
It was argued for Gillies that (1) there was no contract since there was no
consensus ad idem; and (2) that if there was a contract, then the condition in
his acceptance stipulating that the roofs be made wind and watertight was a
term of that contract. Neither argument found favour with the Sheriff Principal.
Roofcare Ltd had offered to do the work on its terms alone, unless it con-
sented, in writing, to a proposed variation by the offeree. Although just such a
variation was proposed, the offeror did not consent to it. At this stage, there-
fore, there was no contract; but when Gillies instructed Roofcare Ltd to proceed
“it was on the basis that the unaccepted qualification or condition did not
17
apply”. Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd was
rightly distinguished on its facts: this case is not a battle of forms one. None-
theless it is significant to the debate about the battle of forms, since the term
under discussion was a clause paramount whereby the offeror intended to
trump any terms to the contrary in the offeree’s acceptance: which it success-
fully did. Moreover, although the contract here was for the supply of services, it
echoes the judgment of Leggatt LJ in another case concerning the sale of goods:
If express terms are to govern a contract of sale, a buyer would expect to buy goods
18
upon the seller’s terms, unless supplanted by the buyer’s own.
This, it has been argued, indicates that where a seller (or supplier) will not
budge from reliance on its own terms, and does not react to proposals for
change by the other party, any resulting contract is concluded on its terms.19
Roofcare Ltd v Gillies, therefore, provides a measure of support for the view
that “in some cases the battle is won by the man who gets the blow in first”.20
17 1984 SLT (Sh Ct) 8 at 9 per Sheriff Principal Bennett.

18 Hitchins (Hatfield) Ltd v H Butterworth Ltd, unreported, Court of Appeal, 25 Feb 1995.
19 McKendrick, Contract Law: Text, Cases, and Materials, 99.
20 Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd [1979] 1 All ER 965 at 968 per
Lord Denning MR.
The next case to be examined, however, does not; and it is this case which, as
already noted, has been described as the “classic Scots authority” on the
battle of forms.21
Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd featured in
the arguments for both sides in Uniroyal Ltd v Miller & Co Ltd.22 The
sequence of relevant events was as follows. On 8 February 1974 the
defenders, Miller & Co Ltd, quoted for the sale of steel rolls to the pursuers,
Uniroyal Ltd. The reverse side of this form set out the seller’s terms and
conditions. On 23 May 1974 the buyer sent its purchase order which
contained its standard terms. One of these was a clause paramount:
The [Company] recognises that the Vendor may use its own form of acknow-
ledgement. Therefore, any provisions of the form of acceptance used which
modify, conflict with, or contradict any provision of the contract or order shall be
deemed to be waived unless expressly agreed to in writing by [the Company] and
signed by an authorised representative.
On 7 June 1974 the seller “accepted” this form, but its own acknowledge-
ment of order form stated:
We shall not be liable in respect of defects and we shall not be liable for loss of
profits, detention or other consequential damage or expenses.
One of the substantive terms in this last document excluded liability for loss
of profits or other consequential loss. The seller then delivered the goods and
the buyer took delivery of and paid for these. A dispute subsequently arose
about the quality of the goods and both parties stood upon their respective
standard terms and conditions.
Although the Lord Ordinary thought that it made no difference whether
he followed Lord Denning’s approach in Butler Machine Tool Co Ltd v Ex-
Cell-O Corpn (England) Ltd or that of Lawton and Bridge LJJ, he reached
his decision on the basis of orthodox formation principles. The purchase
order was an offer, and the acknowledgment of order, because it contained a
revised price and specified a delivery date, was a counter-offer. At this stage
therefore the parties were not ad idem on the matter of price and price was
an essential (or material) term in contracts for the sale of goods. A contract
was only concluded when the buyer took delivery and paid for the goods. This
meant that the buyer’s conduct indicated its acceptance of the seller’s counter-
offer and, consequently, that the seller’s terms prevailed over those of the
21 Hogg & Lubbe, in Zimmermann, Visser & Reid, Mixed Legal Systems at 58 n 159.
22 1985 SLT 101.
buyer. Unfortunately the judgment is fraught with difficulties. In the first

place the Lord Ordinary’s view that price is an essential term in a contract for
the sale of goods does not square either with s 8(1) and (2) of the Sale of
Goods Act 1979, which provides for payment of a reasonable price where this
is not determined by the contract or a course of dealings, or with a sub-
sequent decision of the First Division to the effect that where an agreement
is incomplete, but performance has followed, then terms, particularly as to
23
price, may readily be implied to remedy the omission. Then there is the
matter of the delivery date. The judge’s attitude to this was ambivalent. He
did not think that a term stipulating the delivery date was, in itself, essential;
nonetheless, the fact that there was such a term gave “weight to the view that
the acknowledgment of order was not an unqualified acceptance of the
24
purchase order”. However, in the case of commercial contracts the date or
25
time of delivery is generally regarded as being an essential contract term.
And this view is reflected in the case of international sales by Article 19(3)
CISG, which regards “place and time of delivery” as material contract terms.
To like effect are the Comments to Article 2.1.22 PICC.26 Finally, there is the
judge’s view that he was not dealing with a “simple” battle of forms case: a
type of case which, in his opinion, was one where “the result of such a battle
might have been a complicated and abstruse matter to determine”.27 Butler
Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd was, he thought, just
such a case. Quite why this startling conclusion was reached in a matter
litigated on almost a decade after goods had been delivered and paid for, and
where the only point in issue was whether or not the seller’s exclusion of
liability for consequential loss prevailed over the buyer’s terms which
preserved that liability, is impossible to understand.
With due respect to the view of the Lord Ordinary, Uniroyal Ltd v Miller
& Co Ltd is a classic battle of forms case. What it is not, however, is the
“classic Scots authority” on battle of forms. To the extent that it upholds the
view that the party who fires the last shot wins the battle of forms, it differs
from Roofcare Ltd v Gillies which suggests that the first shot may win the
battle. Consequently, as an Outer House decision commands no greater
respect than that of a sheriff court, the best that can be said is that it is
23 Avintair Ltd v Ryder Airline Services Ltd 1994 SC 270. Note also G D L Cameron, “Consensus
in dissensus” 1995 SLT (News) 132.
24 1985 SLT 101 at 106.
25 Bunge Corpn v Tradax Export SA [1981] 1WLR 711. Note also The Honam Jade [1991] 1 Lloyd’s
Rep 38. See also R M Goode, Commercial Law, 3rd edn (2004) at 270.
26 Comment 3, Illustration 1. See further below, text accompanying notes 68–74.
27 At 106.
presently unclear in Scots law which party’s form, first or last, will win that
battle.
It is interesting in this context to note a degree of parallelism with South
Africa. The South African law of contract seems to have tended to ignore the
battle of forms debate. One writer expresses the opinion that if a contract
exists at all it may be hard to determine its content.28 The most recent edition
29
of Christie does not refer to Butler Machine Tool Co v Ex-Cell-O Corpn
(England) Ltd, and makes no mention of the “battle of forms” either as a term
or as a discrete problem. However, the brief yet complex analysis of the case
law by Hogg and Lubbe suggests that while a South African battle of forms
case might be analysed in terms of orthodox contract formation theory
30
(which would produce a victory for the firer of the last shot), overall the law
“reflects an approach which places the emphasis less on the concurrence of
declarations and manifested consent than on disagreement and induced
31
reliance”. For example, in Bok Clothing Manufacturers (Pty) Ltd v Lady
32
Land (Pty) Ltd, the issue was whether or not the seller could rely on a
retention of title clause. Although the parties had done business since 1977, it
was only in 1980 that this clause appeared in the terms and conditions found
on the reverse of the seller’s order forms. Reference to this term was also,
however, in the seller’s invoices and in “the legend at the bottom of the order
form[s]”. As Hogg and Lubbe point out, “the court eschewed an analysis in
terms of the rules of offer and acceptance and the “last shot rule”,33 prefer-
ring an approach based on the rules relating to the incorporation of contract
34 35
terms. In Guncrete (Pty) Ltd v Scharrighuisen Construction (Pty) Ltd,
the issue was whether or not terms found in the main contract between the
defendants and the building owner, and empowering the site engineer to vary
or cancel work, applied to a subcontract between the defendants and the
plaintiffs. In response to the latter’s tender the defendants counter-offered,
28 Kerr, Contract 6th edn (2002), 77.

29 Published in 2001.
30 Citing Ideal Fastener Corpn CC v Book Vision (Pty) Ltd (t/a Colour Graphic) 2001 (3) SA 1028
(D); Seef Commercial and Industrial Properties (Pty) Ltd v Silberman 2001 (3) SA 952 (SCA).
31 Hogg & Lubbe, in Zimmermann, Visser & Reid, Mixed Legal Systems, 58–59.
32 1982 (2) SA 565 (C).
33 Hogg & Lubbe, in Zimmermann, Visser & Reid, Mixed Legal Systems, 58–59.
34 On the facts the judge found that it was unfair to incorporate a term which was so onerous and
contained an element of surprise. His reasoning is reminiscent of that in Interfoto Picture Library
Ltd v Stiletto Visual Programmes Ltd [1989] QB 433, though that case was not referred to. One
may doubt, however, whether a retention of title clause in a contract between a trade seller and a
trade buyer is either onerous or surprising.
35 1996 (2) SA 682 (N).
accepting the tender subject to the above term of the main contract being
one of the subcontract. The plaintiffs subsequently conducted themselves in
a manner which implied that they accepted the counter-offer and, indeed,
judgment was given in their favour on that basis. According to Hogg and
Lubbe this decision did not turn on whether there was a contract between
contractor and subcontractor, but “on an objective principle of reasonable
36
reliance”. With respect, neither of these two decisions commends itself as a
model for the resolution of the battle of forms. Indeed neither case involved
a battle of forms.
The first, it is true, is correct in inferring that incorporation is an issue of
content and not formation. But the rules regarding incorporation of terms
are essentially designed to promote fair dealing – particularly in the context
of consumer contracts. The basis on which a term is not to be included in a
contract where an incorporation approach is adopted is premised upon its
unfairness: consequently, seller’s term X is not a term of the contract because
it is unfair and the law, for policy reasons, does not permit the inclusion of
unfair terms. However, in a classic battle of forms case between business
parties of proportionate bargaining power substantive fairness of contract
terms should not be an issue which the law encourages either of the parties to
plead easily.37 Furthermore, one cannot assume that the battle of forms is
confined to cases involving terms which are considered to be objectionable
on the ground of unfairness. Is there anything inherently unfair in retention
of title or price-variation clauses? The battle of forms centres on terms that
are different and mutually incompatible: seller’s term X is negated by buyer’s
term Y. The question here is – what is to be done with such terms?
There is, however, one useful point which incorporation analysis can high-
light; and that is the element of (unfair) surprise caused by the manner in
which the term is incorporated. And this is something to which I will return
when discussing the treatment of clauses paramount.
The second case, with its stress on objectivity, is more problematic. The
contract was made on the main contractor’s terms because the subcontractor
reacted in a manner which would induce a reasonable person to believe that
it “was assenting to the terms proposed by the other party”.38 The difficulty
36 Hogg & Lubbe, in Zimmermann, Visser & Reid, Mixed Legal Systems, 59.
37 This is what the two Law Commissions discovered when they proposed extending the grounds of
challenge available under the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/
2083) to business-to-business contracts (Law Com No 292, Scot Law Com No 199) at 61 –
“businesses value certainty above protection and, with the exception of small businesses, neither
need nor want additional protection”.
38 At 686 per Alexander J, quoting Blackburn J in Smith v Hughes (1871) LR 6 QB 597 at 607.
with this approach, however, is its recourse to the objectivity paradigm and
the connected problem of which variant of that paradigm is to be used.39
Added to this is the possibility that whichever variant is resorted to, the
conclusion may be that there is no contract. This presents no difficulty where
performance has not yet taken place; but is scarcely satisfactory where it is
otherwise. A further consequence of this approach, if applied to a true battle
of forms situation, would be to distance South African contract law from the
position adopted by the international commercial harmonising measures
which will be discussed later in this essay.
D. FIGHTING THE BATTLE OF FORMS UNDER SCOTS LAW:

A CRITIQUE
The notes to the Comment to Article 2:209 PECL observe that the last shot
theory represents the “prevailing view” in Scotland in relation to the winning
40
of the battle of forms. As a statement of the stance taken by some scholars,
41
this is correct: though the justification for taking it, as has been suggested, is
rather slight. Certainly for those who do espouse it, or who see the battle of
forms as being resolved on a “traditional approach”,42 this manner of tackling
the problem in Scots law has the merit of simplicity. The buyer’s purchase
order is its offer to acquire goods from the seller. The seller’s acknowledg-
ment of order form represents its rejection of the seller’s offer and its own
counter-offer: at this point not only is there no contract between buyer and
seller, but the buyer’s offer has also ceased to exist, having been killed off by
43
the seller’s qualified acceptance. However, the seller then does what both
parties want: it delivers the goods. And the buyer then does what the seller
wishes; it takes delivery of the goods and pays for these. The buyer’s conduct
here is treated as acceptance; and as acceptance of the counter-offer made by
the seller in the acknowledgment of order form. Thus the battle of forms has
been resolved upon an orthodox contract formation analysis as in Uniroyal
44
Ltd v Miller & Co Ltd.
39 Above note 10.

40 Article 2:209 PECL, Note 2(b).
41 SME, vol 15, para 636 note 2.
42 McBryde, Contract, para 6–105.
43 Wolf and Wolf v Forfar Potato Co 1984 SLT 100; Rutterford Ltd v Allied Breweries Ltd 1990 SLT
249; Findlater v Mann 1990 SLT 465.
44 1985 SLT 101. Note also, to similar effect, Chitton Bros v S Eker Ltd unreported, Outer House,
8 July 1980. However, in Roofcare v Gillies 1984 SLT (Sh Ct) 8 the first shot rule was applied.
Non-Scottish readers may care to note that the decisions in Uniroyal Ltd v Miller & Co Ltd and
At least five incidents of this analysis are, however, overlooked in its

application. First, it produces only one conclusion where it is applied; and
that is that the party who fires off the last form in the battle of forms always
wins. Second, the winner’s victory is always gained by default. It does not
matter that the party who fires the first form appreciates the outcome pro-
duced by the orthodox analysis and actively seeks to displace it by the inclusion
45
of a clause paramount. Consequently, in the context of sales transactions the
46
seller will always have the edge over the buyer. Third, although the clause
paramount may offer an opportunity to negotiate a solution to points of
difference between the two sets of terms, thereby reinforcing the message
that the first party’s terms are otherwise to prevail, the second party may
ignore these; safe in the knowledge that the law will support what is basically
quite unreasonable behaviour. Fourth, the orthodox analysis injects a sub-
stantial dose of uncertainty into commercial activities. The parties’ under-
standing is that they have a contract; they would find the suggestion that they
do not ludicrous. Their only point of disagreement is whether the particular
term in issue does or does not apply. The orthodox analysis queries the
parties’ understanding and resolves the problem of contractual content by
deconstructing that understanding. As such it is not only quite inimical to the
lex mercatoria principle of favor contractus, and must therefore be accounted
a positive disadvantage in cross-border contracting,47 but it is also contrary to
the policy principle of Scots law that “the essence of commerce is making
bargains”, and that “unenforceable arrangements are the exception and not
48
the rule”.
Fifth, and finally, the orthodox analysis has a clear and negative impact on
transaction costs. Standard forms represent an economically efficient means
Chitton Bros v Eker were those of Outer House judges in the Court of Session and that such
decisions do not have a higher authority than those delivered by a sheriff. Thus the case law goes
either way in Scotland: a point overlooked in the Comment to Article 2:209 PECL.
45 A point recognised by Lord Denning MR in Butler Machine Tool Co Ltd v Ex-Cel-O Corporation
(England) Ltd [1979] 1 All ER 965, CA. The Dutch Civil Code provides that it is the first shot
which wins the battle: Hardstaal Holdings BV v NN (2001) C99/315HR.
46 C Sukurs, “Harmonizing the battle of the forms: a comparison of the United States, Canada, and
the United Nations Convention on Contracts for the International Sale of Goods” (2001) 34
Vanderbilt Journal of Transnational Law 1481 at 1487.
47 G Baron, “Do the UNIDROIT Principles of International Commercial Contracts form a new lex
mercatoria?” http://www.cisg.law.pace.edu/cisg/biblio/baron.html.
48 R & J Dempster v Motherwell Bridge and Engineering Co Ltd 1964 SC 308 at 328 per Lord
President Clyde. To like effect was Lord Guthrie at 332: “The object of our law of contract is to
facilitate the transactions of commercial men, and not to create obstacles in the way of solving
practical problems arising out of the circumstances confronting them, or to expose them to
unnecessary pitfalls”.
of doing business. The initial outlay is in legal fees to the draftsperson.

Thereafter the forms may be signed and dispatched by “underlings”.49 Trans-
action costs would, however, rise were it to become necessary for each
“underling” to scrutinise every form sent by another “underling” in order to
detect minor differences.50 The clause paramount may therefore be viewed
as promoting rather than impeding economic efficiency. But the clause
paramount, whether in the first shot or the last, is certainly not immune from
criticism either. The clause is essentially adhesive in nature; and the refusal to
do business save on one’s own terms represents a take it or leave it approach.
To some extent this rather leonine clause may be mitigated if negotiation of
different terms is conceded as a means of shifting the position of the party
insisting on its terms alone, but such negotiation may not always stand much
chance of changing that party’s mind. Consequently, in dealings between
commercial parties, although there is nothing intrinsically unfair about
wishing to have one’s own contract terms prevail, given that the purpose of a
clause paramount is to negate all of the other party’s terms, it is not unreason-
able to argue that it must do so in clear terms and above all in a prominent
fashion. This, as we shall see, is a feature of some of the models to be
considered next.
E. THINKING OUTSIDE THE BOX: MODEL SOLUTIONS TO

THE BATTLE OF FORMS
A number of solutions to the problem of the battle of forms exist. Perhaps the
best known of these are to be found in the US Uniform Commercial Code
(UCC); CISG; UNIDROIT PICC; and PECL. From a United Kingdom
(and that includes a specifically Scottish) perspective, each represents a
different approach from that adopted domestically. None, however, adopt quite
51
the same approach and so a measure of comparison must be drawn before
any evaluation may be attempted.
49 The terminology is that of J White & R S Summers, Uniform Commercial Code (1988), 23;
however the sentiment was one shared by UNCITRAL in drafting CISG: Yearbook of the United
Nations Commission on International Trade Law, vol 9 (1978), 92.
50 D A Levin & E B Rubert, “Beyond UCC Section 2–207: should Professor Murray’s proposed
revision be adopted?” (1992) 11 Journal of Law and Commerce 175 at 188.
51 For a broad comparative perspective, see E Jacobs, “The battle of the forms: standard term
contracts in comparative perspective” (1985) 34 ICLQ 297; A T von Mehren, “The battle of forms:
a comparative view” (1990) 38 American Journal of Comparative Law 265.
(1) The UCC

§ 2–207 UCC [extant]
(1) A definite and seasonable expression of acceptance … which is sent within a
reasonable time operates as an acceptance even though it states terms addi-
tional to or different from those offered or agreed upon, unless acceptance is
expressly made conditional on assent to the additional or different terms
(2) The additional terms are to be construed as proposals for addition to the
contract. Between merchants such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or is given within
a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is
sufficient to establish a contract for sale although the writings of the parties do
not otherwise establish a contract. In such case the terms of the particular
contract consist of those terms on which the writings of the parties agree,
together with any supplementary terms incorporated under any other
provisions of this Act.
§ 2–207 UCC [proposed]
If (i) conduct by both parties recognizes the existence of a contract although their
records do not otherwise establish a contract, (ii) a contract is formed by offer and
acceptance, or (iii) a contract formed in any manner is confirmed by a record that
contains terms additional to or different from those in the contract being
confirmed, the terms of the contract subject to Section 2–202 are:
(a) terms that appear in the records of both parties;
(b) terms, whether in the record or not, to which both parties agree; and
(c) terms supplied or incorporated under any provision of this Act.
So far as the UCC is concerned, the current provision on battle of forms is on

the way out. The effect of § 2–207 UCC, as it stands, may be summarised very
briefly. Subsection (1) rejects the equiparation of qualified acceptance and
counter-offer just because some terms of the “acceptance” do not mirror image
those of the offer.52 But this exception to orthodox formation analysis hangs
on two criteria being met. First, despite the presence of additional or differ-
ing terms, an objective view of the facts must reveal that a contract has been
53
concluded. Second, the offeror may forestall conclusion by providing that it
54
must first assent to such additional or differing terms. If these hurdles are
overcome, the content of the contract is then determined by subsection (2).
Incorporation is not automatic, however. A clause paramount in the offer
52 To like effect is Restatement, Second, Contracts, Articles 38(2), 39, 59, and 61. Note also, as
examples, Roto-Lith Ltd v F P Bartlett & Co, CA Mass 1962, 297 F 2d 497; Howard Construction
Co v Jeff-Cole Quarries Inc, Mo App 1983, 669 SW 2d 221.
53 US Industries Inc v Semco Manufacturing Inc 1977 CA 8 Mo, 562 Mo 2d 1061.
54 Such a precondition will not be easily inferred: Reaction Molding Techniques Inc v General
Electric Co, DC Pa 1984, 588 F Supp 1280.
which makes clear that only a de plano acceptance will be tolerated renders
the offeree’s attempt to incorporate its terms, whether additional or differing,
nugatory. There will be a contract, but its content will be determined by the
offer. Subsection (3) is something of a longstop where documentary
exchanges between parties do not disclose a concluded contract. But if buyer
and seller behave in a manner which indicates their belief, which is consistent
with commercial reality, that they have a contract, then the law respects that
belief. In this case the content of the contract is a mixture of those terms
which the documentary exchanges reveal to have been agreed, supple-
mented if need be by terms implied by the UCC in sales contracts.
§ 2–207 UCC remains predicated upon a core requirement that a contract
must exist either in fact or in belief. Nevertheless, its purpose is to determine
the issue of content when the parties’ terms differ in some respects. Its
suggested replacement rests upon the same requirement and continues to
espouse that objective. There is, however, an important difference between
proposed and extant § 2–207 UCC. I have already noted that extant § 2–207
UCC recognises the effect of a clause paramount in the offer. Proposed § 2–
55
207 UCC does not. By implication it appears to reject the automatic effect
of the clause paramount (the first shot) and also orthodox formation analysis
(the last shot). Consequently, a battle of forms cannot, automatically, be won
by either the party who fires the first shot or the party who fires the last. Where
the response to an offer containing a clause paramount is a counter-offer,
there is no presumption that the offeror agrees to contract on the counter-
offeror’s terms. If the parties move to performance, the contract will comprise
those terms on which the parties have agreed (including terms not found in
the documentary record) and terms “supplied or incorporated” by the UCC.
A final brief comment: proposed § 2–207 UCC is not restricted to battle of
forms situations and is generally applicable to contracts for the sale of goods.
(2) CISG56
Article 19 CISG
(1) A reply to an offer which purports to be an acceptance but contains additions,
limitations or other modifications is a rejection of the offer and constitutes a
counter-offer.
55 2002 revision.
56 See generally, F Vergne, “The ‘battle of the forms’ under the 1980 United Nations Convention on
Contracts for the International Sale of Goods” (1985) 33 American Journal of Comparative Law
233; C Moccia, “The United Nations Convention on Contracts for the International Sale of Goods
and the ‘battle of the forms’” (1989–90) 13 Fordham International Law Journal 649; Forte (1995)
1 Contemporary Issues in Law 43 at 62–65.
(2) However, a reply to an offer which purports to be an acceptance but contains

additional or different terms which do not materially alter the terms of the
offer constitutes an acceptance, unless the offeror, without undue delay,
objects orally to the discrepancy or dispatches a notice to that effect. If he does
not so object, the terms of the contract are the terms of the offer with the
modifications contained in the acceptance.
(3) Additional or different terms relating among other things to the price,
payment, quality and quantity of the goods, place and time of delivery, extent
of one party’s liability to the other, or the settlement of disputes are considered
to alter the terms of the offer materially.
The Scottish Law Commission has proposed that certain provisions of CISG
57
should serve as a model for reform of the law of contract formation. Indeed
Article 7(1) and (2) of the Uniform Law on the Formation of Contracts for
the International Sales of Goods 1964, which are substantially the same in
content as Article 19(1) and (2) CISG, were given effect in the United
Kingdom by the Uniform Laws on International Sales Act 1967, section 2(1)
in respect of international sales of goods. So the Scottish Law Commission’s
proposal was scarcely radical. As far as the problem of the battle of forms is
concerned, this is most unfortunate. If § 2–207 UCC extant can be described
as an “amphibious tank that was originally designed to fight in swamps but
was ultimately sent to fight in the desert”,58 then Article 19 CISG is an
amphibious tank that was designed to sink in those swamps. In modern
parlance it “talks the talk”. But we may enquire does it “walk the walk”? To be
blunt – I think not.
Article 19(1) CISG is fundamentally premised on the orthodox analysis of
59
contract formation: the mirror image rule. As a result, additional or differ-
ing terms in the response to an offer cannot in principle permit that response
60
to be viewed as anything other than a rejection and counter-offer. Such
terms are not to be viewed as proposals for modification of the offer’s terms.
57 Report on Formation of Contract: Scottish Law and the United Nations Convention on Contracts
for the International Sale of Goods (Scot Law Com No 144, 1993) at para 1.10.
58 White & Summers, Uniform Commercial Code at 24.
59 Sukurs (2001) 34 Vanderbilt Journal of Transnational Law 1481 at 1496. UNCITRAL considered
the viewpoint that what ultimately emerged as Article 19(2) CISG should be deleted since it
altered the mirror image approach. This proposal was rejected, though only “after considerable
deliberation” (Yearbook of the United Nations Commission on International Trade Law, vol 9
(1978), 42–43). A working group subsequently recommended the addition of a version of what is
now Article 19(3) CISG; but stated that its “first preference” was the deletion of what is now
Article 19(2) CISG since this “contradicted the basis principle”, set out in what is now Article
19(1) CISG, “that an acceptance must agree with the terms of an offer” (Yearbook of the United
Nations Commission on International Trade Law, vol 9 (1978), 43).
60 As was the case in the CISG’s ill-fated predecessor, the 1964 Hague Uniform Law on the
Formation of Contracts for the Sale of Goods, Article 7(1).
It is of course true that Article 19(2) CISG permits minor variations so long as
the offeror does not object; but any material variation of the offer quite
simply precludes the formation of a contract for the sale of goods. Here there
is an instant and stark contrast with § 2–207 UCC, which regards materiality
as relevant to the content of a contract but not to its formation. The converse
is true of Article 19(1) CISG. And when we turn to consider terms which
would preclude the formation of a contract because they constitute material
alterations, Article 19(3) presents a list which is not only extensive but which
is also questionable in some instances and not exhaustive. Consequently, the
scope for departure from the mirror image rule is too severely restricted: a
61
point which the Scottish Law Commission concedes. That said, particularly
in relation to “additional terms”, the Article is less circumscribed than it may
62
first appear. Thus terms implied by trade usage, and therefore implicit in an
acceptance of an offer which makes no mention thereof, will not prevent
conclusion of a contract and will form part of its contents.
Article 19 CISG is directed at the situation where parties have spotted
additions or variations, have not proceeded to performance, and are
wrangling over whether or not they have a contract. But what if after having
exchanged standard forms of offer and acceptance, and having performed
their respective parts of the bargain, a problem arises which is referable to
diverging terms in the documents exchanged? Since Article 18(3) CISG
permits conclusion of a contract on the basis of performance, and since the
seller’s standard acknowledgment of order form would be treated by Article
19(1) CISG as its counter-offer, the buyer by taking the goods and making
payment of the price has accepted the counter-offer and the contract would
be on its terms. In other words, the seller who fires the last shot automatically
63
wins the battle of forms. This is quite simply not an acceptable solution to
the problem.
Article 19(2) CISG represents a compromise between those legal systems
that require the application of a strict mirror image rule, and those that adopt
a more relaxed position re immaterial or ancillary variations of the offer’s
61 Scot Law Com No 144 (1993) at para 4.19.

62 M Schmidt-Kessel, in P Schlechtriem & I Schwenzer (eds), Commentary on the UN Convention
on the International Sale of Goods, 2nd edn (2005) at 139.
63 This appears to be the result reached by an American court in Magellan International Corp v
Salzgitter Handel GmbH, DC Ill, 1999, US Dist Lexis 19386. Note also Filanto SpA v Chilewich
International Corp, SDNY 1992, 789 F Supp 1229; R S Rendell, “The new UN Convention on
International Sales Contracts: an overview” (1989) 15 Brooklyn Journal of International Law 23
at 29.
terms.64 Scots law with its rejection of the concept of essential and inessential
terms in offers65 falls into the former category. However, in comparison with
the UCC in both its present and future manifestations, it merely tinkers with
orthodox formation analysis. The Scottish Law Commission regards it as close
to the orthodox model and the features which would seem to commend it to
them all relate to the point that the legislation proposed would require virtually
66
no practical change to current Scots law. This attitude contrasts strongly
with that in the United States where it has been very persuasively argued that
67
CISG should not be used as a paradigm for revision of the UCC. Again in
contrast to the approach of either extant or proposed § 2–207 UCC, Article 19
CISG is inconsistent with the modalities of modern commerce. As a formation-
based approach, it queries commercial understanding of the contracting process
and is therefore unduly paternalistic. Furthermore, as already mentioned, it
is economically inefficient, producing a negative impact on transaction costs.
The American model facilitates commerce; and the proposed revision, by
eliminating first or last strike victories, is conducive to future business relations
between disputants. CISG, on the other hand, by adherence to the contract
formation approach to battle of forms not only produces an almost certain
winner in the party who fires last but, thanks to its restrictive interpretation of
immateriality, is more conducive to a finding of no contract rather than a
determination of contractual content. If Scots law is to be reformed in this area,
I would hope that CISG is no longer considered to represent the ideal model.
(3) PICC
Article 2.1.22 PICC

Where both parties use standard terms and reach agreement except on those
terms, a contract is concluded on the basis of the agreed terms and of any standard
terms which are common in substance unless one party clearly indicates in
advance, or later and without undue delay informs the other party, that it does not
intend to be bound by such a contract.
68
Article 2.1.22 PICC represents a simple yet elegant approach to the battle
64 A M Garro, “Reconciliation of legal traditions in the UN Convention on Contracts for the Inter-
national Sale of Goods” (1989) 23 International Law 443 at 462–463.
65 Rutterford Ltd v Allied Breweries Ltd 1990 SLT 249.
66 Scot Law Com No 144 (1993) at para 4.19.
67 H D Gabriel, “The inapplicability of the United Nations Convention on the International Sale of
Goods as a model for revision of Article Two of the Uniform Commercial Code” (1998) 72 Tulane
LR 1995.
68 Although the 2004 version of PICC is a revision of the 1994 original, Article 2.1.22 of the 2004
Principles is a verbatim reproduction of Article 2.22 of that original.
of forms. Essentially it requires us to envisage a situation in which a

distinction can be drawn between the non-standard (i.e. variable) terms and
the standard (i.e. general) terms in the purchase order and acknowledgment
of order. The former will normally, I think, refer to price, payment, and
delivery:69 clearly matters which vary from transaction to transaction. The
latter may be on the reverse side of the document containing the variable
terms, or in an accompanying document. If the parties can be shown to be
agreed on the variable terms, then the fact that their general terms may differ
does not prevent conclusion of a contract, the terms of which are the agreed
variable terms plus those general terms that “are common in substance”.
General terms which conflict are simply discarded under the “knock-out”
principle. It will be noted that the CISG approach does not require conduct
to perfect the bargain. A contract is concluded by the documentary exchange
itself. In this respect Article 2.1.22 PICC departs from UCC § 2–207(3) UCC
but is consistent with Article 19 CISG and Article 2:209 PECL.
Article 2.1.22 PICC recognises the twin problems produced by the mirror
image rule, namely that there may be no concluded contract; and that if there
is, then it must be on the terms found in the last shot fired.70 It further
recognises commercial reality by concluding that where standard form offers
generate standard form acceptances, with neither buyer nor seller being
“aware of [any] conflict between their respective general terms”, then
neither should be permitted thereafter either to challenge the existence of a
contract between them or to maintain that it is the terms of the last shot
71
which determine the contract’s content. However, the last shot may still win
the battle where it contains a clause paramount. The justification for this last
position would seem to be its adhesive nature. The seller has drawn its line in
the sand, accept its terms of business or proceed no further with the proposed
transaction. If the buyer performs its part of the bargain, the contract is
concluded on the seller’s terms alone. A buyer may, however, pre-empt such
a strike by declaring that a contract may only be concluded on its terms. But
whether the clause paramount is pre-emptive or reactive, it must be “clearly
indicate[d]” to the other party. The Comment to Article 2.1.22 PICC is
somewhat equivocal on this point; but appears reluctant to concede that
clauses paramount found in the general terms and conditions themselves
might satisfy the publicity requirement.
69 These are the terms identified in Comment 3, Illustration 1. PECL adds to these terms relating to
description of performance: Comment A.
70 Comment 2.
71 Comment 3.
If, for example, one applies Article 2.1.22 PICC to the facts of Uniroyal
Ltd v Miller & Co Ltd,72 in which the clauses paramount appeared only in the
parties’ general terms but were not referred to otherwise, then neither would
apply.73 If, on the other hand, the buyer (Uniroyal) had included their clause
paramount along with other variable terms (such as price and time and place
of delivery) on the face of their purchase order, the seller’s acceptance,
regardless of what its standard terms provided, would have concluded a con-
74
tract on the buyer’s terms. So here the first shot would have prevailed. It did
not of course because on the approach taken, the last shot rule was applied.
Article 2.1.22 PICC is quite unlike Article 19 CISG. The latter is mired in
an approach to the battle of forms which is predicated on the orthodox
formation analysis; and by virtue of that connection is condemned to the last
shot principle if indeed there is a finding that a contract has been concluded.
From an international convention concerned with cross-border contracts
one would expect a philosophy designed more to promote enforceability than
to impede it and Article 19 CISG, like Scots law, is at positive odds with the
principle of favor contractus which may be accounted part of the modern lex
mercatoria. Article 2.1.22 PICC is quite a radical shift away from orthodox
theory; which it implicitly recognises as productive of these extreme results.
Indeed its preservation of the clause paramount, but only where there has
been clear satisfaction of a prominent visibility prerequisite, seems to sit well
with the requirement under English (and I would venture Scots) law, that
terms which radically alter the basic expectations of a contracting party must
75
be specifically drawn to the attention of that party.
Perhaps the only major expression of dissatisfaction which might be
levelled at Article 2.1.22 PICC concerns the effect of clauses paramount. The
first point, of course, is that by permitting these adhesive terms one rein-
forces potential inequalities of economic strength between buyers and sellers.
One wonders whether the requirement of fair dealing “in international
76
trade” might not yet be interpreted to encompass abuse of bargaining power.
PICC appears to condone the practice, provided the strike is publicised and
visible. While it is true that a clause paramount may come as a surprise to one
of the parties, the clause is primarily objectionable on policy grounds. True,
72 1985 SLT 101.

73 Comment 3, Illustration 2.
74 Comment 3, Illustration 3.
75 Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433; Montgomery
Litho Ltd v Maxwell 2000 SC 56.
76 Article 1.7 PICC.
the recipient of a document in these terms may “inform the other party that
it does not intend to be bound by such a contract”, but this produces a
dysfunctional solution at least in terms of cross-border trade. In this respect
the policy underpinning proposed § 2–207 UCC is to be preferred.
(4) PECL
There is consensus that Article 2:209 PECL and PICC are basically the
same.77 This is perhaps debatable. There is also a view that Article 2:209
PECL “has adopted the common-law [sic] approach”.78 This is not debatable;
it is simply bizarre. Were Article 2:209 PECL to be applied to the facts of
79
Uniroyal Ltd v Miller & Co Ltd the seller (Miller & Co Ltd) would not have
won by virtue of firing the last shot. But nor would the buyer (Uniroyal Ltd)
have won on the basis of having fired the first shot. Because both parties
asserted the paramountcy of their respective standard terms, thereby
indicating their unwillingness to be bound by the other’s standard terms,
neither set of standard terms would have prevailed. Instead, their contract
would have comprised the essential terms of their contract, upon which their
agreement would be patent, together with those general terms which were
“common in substance”; the standard terms which conflicted with each other
would cancel or knock each other out.
But it “will not always be easy to decide”, the Comment tells us, whether
terms really are “common in substance”.80 The illustration provided by the
Comment deals with an arbitration clause which occurs in both purchase and
acknowledgment of order forms. But whereas one form stipulates that arbi-
tration will take place in London, the other states that it will be in Sweden.81
This is a classic problem which is replicated where parties specify different
courts to hear any potential dispute: for example, the seller specifies the
82
“Commercial Court in London” and the buyer a “Court in London”. The
77 PECL, Notes 2(a); M J Bonnell, “The UNIDROIT Principles of International Commercial

Contracts and the Principles of European Contract Law: similar rules for the same purposes?”
(1996) 26 Uniform Law Review 229; M P Viscasillas, “The formation of contracts and the
Principles of European Contract Law” (2001) 13 Pace International Law Review 371.
78 Viscasillas, (2001) 13 Pace International L Rev 371 at 389. The same writer asserts that this is
equally true of Article 2.22 PICC (1994 edition).
79 1985 SLT 101.
80 Comment C2.
81 Illustration 2.
82 For a case in which the seller’s offer insisted that disputes were to be resolved by arbitration in
California, and the buyer’s acceptance stipulated for their resolution by arbitration in the United
Kingdom, see OTM Ltd v Hydranautics [1981] 2 Lloyd’s Rep 211.
statement in the Comment – “it is the identity in result not in formulation

that counts” – suggests to me that the term should not be interpreted literally
but teleologically or purposively instead, which would, I think, mean that one
should overlook the fact that the places of arbitration differ and recognise
that because the parties’ common purpose was to avoid litigation and submit
disputes to arbitration the two clauses have a common substance. But this is
not the result which the illustration endorses: “Although offer and accept-
ance have in common that they both refer to arbitration, the clauses are not
‘common in substance’ and accordingly neither of the places of arbitration
are agreed on.” There is no doubt that the place of arbitration can be
important and may have been chosen deliberately and with care depending,
for example, upon whether there is a light or hard review of arbitral decisions
by the courts of the place where arbitration takes place. Ultimately this may
be a matter which will require litigation to determine if this clause remains in
the contract or must be discarded.
Another complication arises where the buyer or seller respectively includes
a clause paramount in the variable terms of the offer or the acceptance.
Under Article 2.1.22 PICC a clause paramount will be effective provided that
it appears in the variable terms of the form and satisfies a prominent visibility
requirement. This does not appear to be quite the PECL approach.83 If one
of the parties expressly stipulates, but not in the general terms of the form,
that it will not be bound by terms other than its own, then no contract comes
84
into being. By implication, however, if the clause paramount is one of the
general terms then a contract will be capable of conclusion. A similar term in
the general terms of the response of the other party will disappear on the
knock-out principle since these two clauses paramount are irreconcilable.
However, there is also a fall-back position. This operates where after forms
have been exchanged one party notifies the other “without delay” that it does
85
not want to be bound by the contract. Suppose that the buyer’s offer
includes this clause :
Any provisions in the form of acceptance used which modify, conflict with or
contradict any provision of the contract or order shall be deemed to be waived
unless expressly agreed to in writing by the Company and signed by an authorised
representative.

84 Article 2:209(a) PECL.
85 Article 2:209(b) PECL.
Under Article 2.1.22 PICC there would be a contract if this clause paramount
was not part of the buyer’s standard conditions. Under Article 2:209(2)
PECL, however, there would not. Under Article 2.1.22 PICC there would
still be a contract if this clause was found in the buyer’s standard conditions
but the clause paramount would be disregarded. The same result would
occur under Article 2:209(2)(a) PECL. PICC, therefore, adheres more
closely to the favor contractus principle than does PECL in this regard. One
wonders why PECL has not here lived up to its belief that a “contract may be
86
formed by the exchange of general conditions”?
F. PECL AS THE WAY FORWARD?
Several things are very clear. The first is that as a national legal system Scots
law treats the battle of forms in a fragmented fashion in that the cases do not
suggest a uniform response to the question – does the first or the last shot
prevail? Second, Scots law does not appreciate that the battle of forms is a
matter of contract content, not of contract formation. Third, there has been
no judicial recognition so far that orthodox formation analysis is ill-suited to
the reality of modern commerce, contract procedure, and commercial
expectations.87 A fourth concern is that despite the volume of cross-border
commerce within the European Union, there is no uniform approach to the
battle of forms among the member states. 88 Under Dutch law the first shot
89
rule has been applied; in the United Kingdom the last shot rule has been
90
assumed to prevail; and under Austrian and German law the knock-out rule
91
seems to be preferred. In Spain, however, the position appears to be un-
clear and in Sweden opinion is against the application of any single approach.
But problems are relatively easy to articulate in this context; solutions are
more difficult. How does PECL fit into the reformist debate?
Article 2:209 PECL is not flawless; and some of these flaws have been
mentioned here. However, the provision is based on the fundamentally
86 Comment C1.
87 On the gap between judicial perceptions of commercial expectations and the reality, see S Styles,
“Good faith: a principled matter” in A D M Forte, Good Faith, 157 at 170–171.
88 See E Hondius & C Mahé, “The battle of forms: towards a uniform solution” (1997–98) 10
Journal. of Contract Law 268.
89 Article 6:225(3) BW.
90 Uniroyal Ltd v Miller & Co Ltd 1985 SLT 101; British Road Services v Arthur Crutchley [1968]
1 All ER 811; Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England) Ltd [1979] 1 All ER 965,
CA. As noted in the text earlier, Article 19 CISG also embraces the last shot doctrine.
91 Note also Article 2.1.22 PICC; and proposed § 2–207 UCC.
sound premise that the battle of forms is a contents question and not a
formation issue. In addition, it is more reflective of commercial reality than
the approach taken by my own legal system. On the other hand, PECL is no
more than a model law which has no force in the member states and may (or
may not) provide a template for a European Union-wide contract code.92
However, it is just as important to remember that PECL, as it stands,
provides a useful point of reference for judges or legislators wishing to
93
develop the law. Moreover, PECL has been considered by the Scottish Law
Commission in connection with the reform of the law on penalty clauses and
94
the payment of interest on debts and damages. This is important because
the Commission’s conception of the Scots law of contract is one which is both
modernist and integrationist in spirit:
Scots law has a tradition of being receptive to the best international legal
developments, given the obvious advantages for Scottish traders, lawyers and
arbiters in having our internal law the same as the law which is now widely applied
95
throughout the world in relation to contracts for the international sale of goods.
At that time, however, the model upon which the Commission pinned its
hopes, at least in relation to the battle of forms, was CISG. For the reasons
argued for above, in my opinion the PECL model is to be preferred; and it is
to be hoped that should the matter arise for adjudication in the future, a
Scottish court will recognise that the battle of forms is not yet a resolved and
settled area of law, and will pay serious consideration to disposing of the issue
on the basis of the approach taken in Article 2:209 PECL.
92 PECL, vol 1, Introduction.

93 House of Lords decisions in which reference has been made to PECL are: Director-General of
Fair Trading v First National Bank [2002] 1 AC 481; Shogun Finance Ltd v Hudson [2004] 1 AC
919; R v Immigration Officer at Prague Airport, ex parte European Roma Rights Centre [2005] 2
WLR 1.
94 See, e.g., Report on Penalty Clauses (Scot Law Com No 171, 1999); Discussion Paper on Interest
on Debt and Damages No 127 (2005).
95 Scot Law Com No 144 at para 1.7. For a rather similar argument in favour of harmonising national
and international rules, see J Hellner, “The UN Convention on the International Sale of Goods:
its influence on national sales and contract law”, in R Cranston & R Goode (eds), Commercial and
Consumer Law. National and International Dimensions (1993), 40 at 42.
5 Agency
Laura Macgregor
A. INTRODUCTION
B. APPARENT AUTHORITY
(1) Definition?
(2) South African law
(3) Scots law
(4) PECL
(a) An estoppel or not?
(b) Words or conduct on part of principal
(c) Reasonableness requirement/good faith on part of third party
(d) Reliance by third party
(e) Causation
(f) Loss
(g) Notice requirement
C. UNDISCLOSED PRINCIPAL: THE DIRECT ACTION
(1) Nature of problem
(3) Scots law
(4) PECL
(a) General
(b) Clarification of types of contract formed
(c) When direct actions may be exercised
D. UNDISCLOSED PRINCIPAL: THE NOTICE REQUIREMENT
(1) General
(2) Interplay with rules on election
(3) Effect of performance to wrong party
(4) Summary of comments on notice requirement
E. UNDISCLOSED PRINCIPAL: AVAILABILITY OF DEFENCES
AND COMPENSATION/SET OFF
(1) Exercise of principal’s direct action
(2) Exercise of third party’s direct action
F. CONCLUSION
123
A. INTRODUCTION
A chapter on agency occupies a somewhat unique position in a book of this

type. First, agency is often considered to be more properly part of com-
mercial rather than contract law. This commercial background must be
borne in mind. Agency transactions are increasingly likely to be international
in nature, particularly as agents cross borders within Europe, benefiting from
1
the protection of European Directives as they do so. This international
context makes the prospect of uniform rules for agency transactions
throughout Europe an extremely important one for agency lawyers. It is not
difficult to see the pressing argument in favour of developing Scots agency
principles in line with PECL.
The second reason why this chapter may differ from others in this book is
the extent of English influence which has operated on both Scots and South
African law. English law has been so dominant in matters commercial that
both Scots and South African agency law bear a strong resemblance to
English law. One would imagine that the same could not be said of PECL,
being a collaboration between jurists from both Civilian and Common Law
countries. Nevertheless, as this chapter should illustrate, English agency
principles have been so influential that they have left an obvious mark on
PECL, perhaps to a greater extent than one might have anticipated.
Providing a full flavour of the entirety of agency law in each of the
systems studied is a task which would require a great deal more space than is
available in this book. Two concepts only are discussed in this chapter:
apparent authority and the availability of direct actions between principal
and third party where the principal is undisclosed. There are compelling
reasons for choosing those particular concepts. Perhaps most importantly,
the issue of direct actions forms one of the “fault lines” between the Common
and the Civil Law. Such actions, part of English law for at least three hundred
years,2 were originally rejected by Civil Law countries, being recognised
there only relatively recently and in a piecemeal and limited fashion.3 The
presence of direct actions in PECL is therefore of immediate interest to the
agency lawyer. They are additionally worthy of attention because the English
version, the undisclosed principal doctrine, is highly controversial. As is
1 See EC Council Directive 86/653/EC (OJ 1986, L382/17) on the co-ordination of the laws of
member states relating to self-employed commercial agents.
2 R Powell, “Contractual agency in Roman law and English law” (1956) SALR 41 at 49
3 The extent to which such actions are available in other European countries is summarised in the
Notes to Articles 3:302 and 3:303 PECL.
agency 125
explored in more detail below, many argue that the English version fails
adequately to take account of the third party’s interests. This may be because
the principles of English agency law developed largely during the eighteenth
century, at a time when protection of reasonable reliance by third parties was
not a high priority. Suffused as PECL is with overriding concepts of good
faith, it would not be surprising if the versions contained in PECL shift the
balance towards greater third-party protection. The extent to which this is
the case is explored below.
The other concept analysed here, apparent authority, shares the same
English heritage as the concept of the undisclosed principal. Despite the fact
that its rationale appears to be the protection of third parties through the
operation of an estoppel, its requirements are so rigorous that it often
operates in the principal’s favour. The same issue of the lack of third-party
protection therefore arises. Apparent authority differs from the direct actions
in that it is not, at least to the same extent, a “fault line” between the Common
Law and the Civil Law. Many European systems have developed their own
solutions to the problem which the Common Law solves using apparent
authority.4 Again, the version of apparent authority appearing in PECL owes
much to English law. The focus for discussion is therefore the innovations on
English law contained within PECL, and how useful those might be for Scots
and South African lawyers.
B. APPARENT AUTHORITY
(1) Definition?
Where apparent authority is relevant, the agent lacks the authority to do what
he is purporting to do. Lacking such authority, he cannot create a contract
between the principal and the third party. However, it is important to
consider the conduct of the principal. The principal may have misled the
third party as to the extent of the agent’s authority. Using the terminology of
English law, misleading the third party in this way is treated as a
representation. The third party may rely on the representation and suffer loss
as a result. If the third party can successfully prove each of these elements of
representation, reliance and loss, an estoppel is created in his favour. If the
third party sues the principal, the principal is estopped from denying that the
agent was properly authorised. This provides the third party with protection
in cases where the agent is acting beyond the confines of his authority.
4 Such solutions are summarised in Note 5 to Article 3:201 PECL.

Despite what one would imagine the case to be, in practice the rules of
apparent authority tend to operate in favour of the principal. This is due to
the emphasis which estoppel places on the voluntary conduct of the principal
in the form of a representation. It is often difficult to prove that a valid
representation has been made. Any number of factors may have contributed
to form the third party’s impression of the agent’s authority: for example, a
5
representation by the agent himself, or the surrounding circumstances as a
whole, including the appointment of the agent to a specific role. Thus, it is
probably unrealistic to seek to tie the third party’s impression exclusively to
the conduct of the principal. As a result, many commentators are in favour of
a shift in the balance away from the protection of the principal’s interests and
6
towards further third-party protection, perhaps by focusing on the “agent’s
conduct, as seen from the third party’s perspective, rather than the principal’s
7
conduct in creating the appearance of authority”. Basing apparent authority
on estoppel brings with it a high degree of emphasis on the principal’s
representation as the most important factual cause of the loss. It may be that
apparent authority requires to be rationalised in a manner which does not
utilise estoppel in order to rectify the potential bias in favour of the principal.

In this section and the section on Scots law which follows it, full summaries of
the South African and Scots principles of apparent authority are not
provided. Rather, the sections focus on some key conclusions, borne out by a
comparison of the two legal systems.
In contrast to Scottish law, South African law has benefited from analysis
5 A representation by the agent himself as to the extent of his authority would be an insufficient
basis for a case of apparent authority: see F M B Reynolds, Bowstead & Reynolds on the Law of
Agency, 17th edn (2002) (henceforth Bowstead & Reynolds) at para 8-022, and Armagas Ltd v
Mundogas SA [1986] 1 AC 717.
6 See, e.g., I Brown, “The agent’s apparent authority: paradigm or paradox?” [1995] JBL 360. This
is probably also the motivation behind the wider approach exhibited in the English case of First
Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep 194, particularly by
Lord Steyn. He emphasises the protection of the third party’s reasonable expectations at several
points during his judgment: see at 196, 204. He explores the same theme in judgments in other
cases: see Darlington Borough Council v Wiltshier Northern Ltd [1995] 3 All ER 895 at 903–904;
and in published articles: see “Fulfilling the reasonable expectations of honest men” (1997) 113
LQR 433 and “Written contracts: to what extent may evidence control language?” (1998) 51 CLP
23. Reynolds too prefers this theme as the underlying basis of apparent authority: see F M B
Reynolds, “The ultimate apparent authority” (1994) 110 LQR 21 at 22: “This doctrine, which may
depend on estoppel but is probably better based on the same reasoning which holds contracting
parties to the objective appearances of intention which they create…”
7 Brown [1995] JBL 360 at 372.
agency 127
in some recent cases where the courts, including the Supreme Court of
Appeal, have had the opportunity to identify the separate elements of an
apparent authority case. Quoting from an earlier judgment by Schutz JA,8
Nienaber JA approved the following requirements for a case of apparent
authority in Glofinco v Absa Bank Ltd (t/a United Bank):9
1. a representation by words or conduct;

2. made by [the principal] and not merely by [the agent], that he had the
authority to act as he did;
3. a representation in a form such that [the principal] should reasonably
have expected that outsiders would act on the strength of it;
4. reliance by [the third party] on the representation;
5. the reasonableness of such reliance;
6. consequent prejudice to [the third party].10
This formulation of apparent authority appears to be firmly rooted in

estoppel by representation. Indeed, one could even argue that, because of
the emphasis placed on estoppel, the South African version is “more English
than the English version”. This is because it remains doubtful in English law
whether apparent authority is, in fact, a form of estoppel. It is true that there
are high profile English cases in which clear statements are made linking
apparent authority with estoppel.11 One example is the speech of Lord Diplock
in Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd,12 which
13
has become the touchstone for this type of case in England and in Scot-
14
land. However, on the basis of research carried out to date into English
agency law, it is impossible to state with confidence that apparent authority is
a form of estoppel by representation, or even to confirm whether estoppel by
representation developed before apparent authority or vice versa. Whilst
Reynolds takes the view that some apparent authority cases “even seem to
8 NBS Bank Ltd v Cape Produce Co (Pty) Ltd 2002 (1) SA 396 (SCA) at 412C=E.
9 2002 (6) SA 470 (SCA) at 479–480.
10 2002 (6) SA 470 (SCA) at 479.
11 See Slade J in Rama Corporation v Proved Tin and General Investments Ltd [1952] 2 QB 147 at
149–150. Slade J’s judgment is widely cited; however, it could be argued that, as a first instance
judgment, it has had a disproportionate impact on this area of law.
12 [1964] 2 QB 480 at 502.
13 Bowstead & Reynolds, at para 8–014, indicates that Lord Diplock’s judgment is “constantly cited”.
See also B S Markesinis & R J C Munday, An Outline of the Law of Agency, 4th edn (1998) at 37.
14 See, e.g., British Bata Shoe Co Ltd v Double M Shah Ltd 1980 SC 311 at 317 per Lord Jauncey;
Dornier GmbH v Cannon 1991 SC 310 at 317 per Lord Cowie; Bank of Scotland v Brunswick
Developments (1987) Ltd (No 2) 1998 SLT 439 at 443–444 per Lord President Rodger; John
Davidson (Pipes) Ltd v First Engineering Ltd 2001 SCLR 73 at 77 per Lord Macfadyen.
figure among the origins of the general doctrine of estoppel”,15 others have
suggested that apparent authority cases predate the development of
estoppel.16 By contrast, in South African law, the basis in estoppel is much
clearer than it is in English law. Despite the importance of estoppel in the
South African concept, it would not be correct fully to equate South African
law with English law. It must be remembered that South Africa has its own
version of estoppel.
Closer reference to the South African version of apparent authority also
reveals some differences from English law. The most striking element of the
South African definition is the presence of an extra requirement which is part
17
of neither English nor Scots law. In South African law, a representation
must be in such a form that the principal should reasonably have expected
18
that outsiders would act on the strength of it. At first glance, this may appear
to be a relatively minor difference. However, it is notable that this extra
requirement works in the principal’s favour. The principal is judged by
reference to the conduct of the reasonable person, and only if a reasonable
person would expect the representation to be acted on will it be relevant. The
South African concept therefore appears to be more protective of the
principal than its English equivalent. To this extent South African law appears
to go against the current international trend by adding an extra factor which
favours the principal.
(3) Scots law

Reference to the few modern Scots cases on apparent authority creates the
impression that Scots law has simply “lifted” the concept from English law. In
one recent case, Lord President Rodger, referring to what the parties to the
case had agreed, stated:
15 Bowstead & Reynolds, at para 8–029, cites as examples Pickering v Busk (1812) 15 East 38;
Pickard v Sears (1837) 6 Ad & El 469 and Freeman v Cooke (1848) 2 Ex 654. Montrose also
tended towards this view: see “The basis of the power of an agent in cases of actual and apparent
authority” (1938) 16 Canadian Bar Review 757 at 787.
16 See W W Cook, “Estoppel as applied to agency” (1903) 15 Harvard LR 324 at 325, which is
favoured by G H L Fridman, The Law of Agency, 7th edn (1996) (henceforth Fridman, Agency)
at 120.
17 Nor is this a requirement of the version of apparent authority which appears in Article 2.2.5
PICC.
18 Monzali v Smith 1929 AD 382; Quinn and Co Ltd v Witwatersrand Military Institute 1953 (1) SA
155 (T) at 159E–F; Connock’s (SA) Motor Co Ltd v Sentraal Westelike Ko-operatiewe Mpy Bpk
1964 (2) SA 47 (T) at 51A; NBS Bank Ltd v Cape Produce Co (Pty) Ltd 2002 (1) SA 396 (SCA) at
412D.
agency 129
[T]he law in England and Scotland on apparent or ostensible authority is the

same and in particular … in both systems it is built on the doctrine which is
19
known as estoppel in English law and personal bar in Scots law.
20
However, in contrast to the approach of the South African courts, the
Scottish courts have not sought to make use of the native Scottish concept of
personal bar in order to create a distinctive Scottish concept of apparent
authority. Instead, English case law, and particularly Freeman and Lockyer v
Buckhurst Park Properties (Mangal) Ltd,21 is simply applied in toto. This
ignores the fact, recently confirmed in a leading Scottish case on personal
bar,22 that personal bar differs from estoppel in significant respects. As a
result, any differences between the Scots and English principles of apparent
authority which might arise because of differences between estoppel and
personal bar are obscured. The reason for the reluctance to delve too far into
Scots personal bar may be that, until recently, only one rather dated textbook
23
analysing the area was available.
(4) PECL
(a) An estoppel or not?
Article 3:201 PECL deals with apparent authority under the heading “Express,
Implied and Apparent Authority”. Apparent authority is covered in sub-
paragraph (3) which states that:
A person is to be treated as having granted authority to an apparent agent if the
person’s statements or conduct induce the third party reasonably and in good faith
to believe that the apparent agent has been granted authority for the act
performed by it.
Whether this Article creates an estoppel is a difficult question to answer. The

opening words, “A person is to be treated as having granted authority if”,
appear to focus entirely on the principal, and to suggest that an estoppel only
19 Bank of Scotland v Brunswick Developments (1987) Ltd (No 2) 1998 SLT 439 at 443–444 per
Lord President Rodger. See also the other Scottish cases cited in note 14 above, where Lord
Diplock’s speech from Freeman and Lockyer v Buckhurst Properties (Mangal) Ltd [1964] 2 QB
480 at 502 is used as the main authority.
20 An example is Glofinco v Absa Bank Ltd (t/a United Bank) 2002 (6) SA 470 (SCA) at 479–480.
21 [1964] 2 QB 480 at 502.
22 William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901 at 944 per Lord
Clarke (where he approves Lord Keith in Armia Ltd v Daejan Developments Ltd 1979 SC (HL)
56 at 72) and per Lord President Rodger at 915.
23 J Rankine, A Treatise on the Law of Personal Bar in Scotland (1921). This situation will shortly
change with the publication of the Scottish Universities Law Institute text on Personal Bar by
John Blackie and Elspeth Reid. The author is grateful to Professor Blackie and Ms Reid for
advance sight of their chapter on agency.
is intended. If so, the result is that the principal is barred from denying the
grant of authority to the agent in a question with a third party. The fact that
Article 3:201 PECL contains further conditions redolent of estoppel seems
to support this interpretation: for example, it requires a type of represen-
tation by the principal which induces reasonable reliance by the third party.
There is, however, no reference to the type of loss which the third party must
suffer, which is an issue which would normally be covered were this an
estoppel.
There is an equally persuasive argument that Article 3:201 PECL is not
based on estoppel. The language seems to indicate that, as an established
fact, authority has actually been granted to the agent. One could infer from
the context that, if the criteria are fulfilled, the agent will benefit from full
authority. This inference might arise from the fact that the other types of
authority covered in Article 3:201 PECL, i.e. express and implied authority,
are both types of actual authority. Actual authority is, of course, sufficient to
enable the agent to create contractual relations between the principal and
the third party. Comment D seems to put it beyond doubt that this inter-
pretation is the correct one:
An agent who has apparent authority will have power to bind the principal as
much as if the agent had express authority.
It is important to be able to ascertain whether or not Article 3:201 PECL is

based on estoppel. If so, then the agent will have failed to conclude a contract
between principal and third party. If, however, it is rather in the nature of a
deemed grant of authority, then a valid contract will have been formed. If the
third party is bound by a contract with the principal, then he can make use of
the full range of contractual remedies for breach including specific implement/
performance. If this provision is intended to be an estoppel only, then there
is a strong argument that, logically, no action for implement should be
available. There is, of course, no contract to implement, given that the agent,
not being authorised, could not have created a contract. If an action of
implement were available, it could only be so on the basis of a legal fiction.
It is very difficult to say whether an action of implement would be avail-
able in this situation in Scots and South African law. Looking at the latter first,
the leading text emphasises that where estoppel is used in a situation which
would otherwise be contractual, there is no consensus and therefore no agree-
24
ment. That being the case, one would imagine that specific performance
24 J C Sonnekus, The Law of Estoppel in South Africa (2000) at 196

agency 131
would not be available.25 It is even more difficult to reach a conclusion on this

point in Scots law. No cases have been found in which the third party actually
raises an action of implement on this footing. One can say, therefore, that the
point is subject to doubt in both legal systems. If PECL does provide a route
which does not rely on estoppel, then it is an improvement on Scots and
South African law. The third party has the protection of a valid contract, and
26
the full panoply of contractual remedies that come with it.
(b) Words or conduct on part of principal

PECL recognises that impressions may be created through conduct as well as
27 28
words. This is equally the case in Scots and South African law. Indeed, as
has been judicially noted in both Scotland and England, in the vast majority
29
of cases the representation will be made through conduct rather than words.
In both Scots and South African law the conduct may actually involve silence
30
or an omission to act where a duty to speak or act was present. In both also
31
the conduct may simply involve appointing the agent to a particular position.
This very broad approach is welcome, and it is hoped that a similar approach
will be taken under PECL. The impression which the third party gains of the
agent’s authority is highly likely to have been created by a number of different
25 A comparison can be made with the concept of rei interventus (the forerunner of s 1(3) and (4) of
the Requirements of Writing (Scotland) Act 1995). This concept prevented a party from relying
on the absence of necessary formalities for a contract where his actings resulted in him being
personally barred from denying the existence of the contract. Thus, although, in theory, the
personal bar operated simply to prevent the party from denying the existence of the contract, the
actual practical effect was to set up a contract.
26 It is interesting to note that Article 2.2.5 PICC retains estoppel as a basis.
27 Dornier GmbH v Cannon 1991 SC 310.
28 A J Kerr, The Law of Agency, 3rd edn (1991) (henceforth Kerr, Agency) at 118–119; Quinn and Co
Ltd v Witwatersrand Military Institute 1953 (1) SA 155 (T) at 160C–E, 161F–G.
29 See Dornier GmbH v Cannon 1991 SC 310 at 314 per Lord President Hope, where he approves
a dictum of Lord Diplock which suggests that the most common form of representation is one by
conduct, “namely by permitting the agent to act in the management or conduct of the principal’s
business” (Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at
503).
30 For South African law see Universal Stores Ltd v OK Bazaars (1929) Ltd 1973 (4) SA 747 (A) at
761C per Rumpff JA. For Scots law see E Reid, “Personal bar: case-law in search of principle”
(2003) 7 Edinburgh LR 340 at 352, 361; Cairncross v Lorimer (1860) 3 Macq 827 at 829 per Lord
Campbell LC; William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901 at
925 per Lord President Rodger.
31 For South African law see Kerr, Agency at 118; Quinn and Co Ltd v Witwatersrand Military
Institute 1953 (1) SA 155 (T) at 159F–H; Reed NO v Sager’s Motors (Pty) Ltd 1970 (1) SA 521
(RAD) at 349; Seniors Service (Pty) Ltd v Nyoni 1987 (2) SA 762 (ZSC). For Scots law see
Dornier GmbH v Cannon 1991 SC 310 at 314 per Lord President Hope, where he approves the
dictum of Lord Diplock in Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd
[1964] 2 QB 480 at 530.
factors, one of which may be the agent’s appointment to that job. PECL does
not define relevant conduct on the part of the principal. This would, perhaps,
be to expect too much from PECL in view of its nature as a code rather than
detailed legislation extrapolated from case law.
(c) Reasonableness requirement/good faith on part of third party

As already stated, the criteria which appear in Article 3:201 PECL are very
similar to those which would apply were it an estoppel. The principal’s
statements or conduct must induce the third party “reasonably and in good
faith” to believe in the agent’s authority. The requirement of reasonableness
32 33
is already present in Scots and South African law. A development of this
idea, also present in both legal systems, is that the unusual nature of the
transaction may prevent the third party from arguing that his reliance was
34
reasonable. The requirement of good faith is present in neither Scots nor
South African law. Whether its addition would add anything to the current
reasonableness requirement is debatable. However, one can hardly object to
its addition. Its appearance is also not at all surprising in PECL, suffused as
35
the Principles are with duties of good faith.
(d) Reliance by third party

PECL retains the link between the third party’s loss and the principal’s con-
duct: the third party must have relied on the principal’s conduct. As already
stated, many academics urge that the third party’s reasonable expectations
ought to be protected, howsoever caused. PECL has not taken this route, and
this balanced solution is preferable. The imposition of a type of “strict
liability” on the principal for the agent’s conduct would not be justifiable.
Analogies with vicarious liability in the law of delict or tort are not apposite.
Such situations require extreme solutions as a result of the more serious
invasion of the victim’s physical integrity and for reasons of social policy, in
protecting through the employer’s compulsory insurance scheme those
injured at work. To impose strict liability in an agency situation could have
32 See Gloag, Contract, at 152, citing Paterson Bros v Gladstone (1891) 18 R 403 and Hayman v
American Cotton Co (1907) 45 SLR 207.
33 Quinn and Co Ltd v Witwatersrand Military Institute 1953 (1) SA 155 (T); Monzali v Smith 1929
AD 382 at 389.
34 Glofinco v Absa Bank Ltd (t/a United Bank) 2002 (6) SA 470 (SCA) at 496; British Bata Shoe Co
v Double M Shah Ltd 1980 SC 311 at 318 per Lord Jauncey; Dornier GMBH v Cannon 1991 SC
310 at 315; Kerry v Handel, Garth & Co (1905) 21 Sh Ct Rep 106 at 109 per Sheriff Henderson.
35 See the contribution by H L MacQueen to this volume.
agency 133
adverse economic consequences, even extending to reluctance on the part of

principals to use agents.
(e) Causation
As in estoppel, the causal nexus between the statements or conduct and the
third party’s belief is retained. Again this protects the principal by ensuring
that his actions are the true cause of the loss.
(f) Loss
The type of loss which the third party must suffer in order to raise a successful
action is not specified in Article 3:201 PECL. This is an issue of some
complexity in English, South African and Scots law. In English law, it appears
to be an issue which differentiates apparent authority from estoppel by
representation in general. Whereas estoppel by representation appears to
require an actual loss, change of position in reliance on the representation
36
only is sufficient for apparent authority. This change of position will usually
37
be entering into a contract in reliance on the representation. However, the
English texts focus on a change of position alone, without proceeding further
38
to analyse the extent of loss which is caused by that change of position. The
requirement is therefore a relatively easy one for the third party to fulfil.
The South African requirement appears to be a more difficult one for the
third party to fulfil. David Yuill usefully examines both the type of prejudice
necessary and the time at which it must be suffered.39 According to him, the
third party must prove that he has altered his position to his prejudice.40
Thus, in contrast to English law, real prejudice or loss is a requirement. Other
writers disagree, asserting that, as in English law, a change of position alone is
sufficient.41 Case law does, however, appear to support Yuill’s view that real
prejudice is required, although that term is given a wide interpretation.42
36 Fridman, Agency at 49; Bowstead & Reynolds at para 8-026; S Wilken, Law of Waiver, Variation
and Estoppel 2nd edn (2002) at para 16.12.
37 Bowstead & Reynolds at para 8–026.
38 Fridman, Agency at 49; Bowstead & Reynolds at para 8–026.
39 These arguments are made in an unpublished article by David Yuill, “Unauthorised agency in
South African law”, on file with the author. The author would like to express her thanks to Mr Yuill
for sight of the article.
40 Yuill, “Unauthorised agency” (forthcoming) at 16.
41 D H Bester, “The scope of an agent’s power of representation” (1972) 89 SALJ 49 at 56; Kerr,
Agency at 139.
42 Yuill, “Unauthorised agency” (forthcoming) at 16; citing Jonker v Boland Bank Pks Bpk 2000 (1)
SA 542 (O); Hosken Employee Benefits (Pty) Ltd v Slabe 1992 (4) SA 183 (W) at 191C–D.
With regard to timing, Yuill suggests that prejudice must be measured, not
when the change of position occurs, but rather by looking forward to the
prejudice which the third party would suffer if the principal successfully
denied that the agent was authorised.43 It is, of course, unnecessary for the
issue of timing to be analysed in English law because of the focus on a change
of position only rather than any real detriment.44
In Scotland there is no real analysis of this issue in an agency context. In
the context of a recent case on personal bar, Lord President Rodger indicated
that the loss is “that which would flow from the change of position if the
45
assumption were deserted that led to it”. The approach is similar to the South
African one: Lord Rodger seems to envisage a change of position which actually
results in some degree of prejudice. His approach also shares the South African
view as to the time at which loss must be measured: the relevant time is the
moment when the principal seeks to withdraw from the so-called contract.
PECL, by omitting to specify the degree of loss or time at which it is
measured, avoids these rather intricate questions. Whether or not this
approach is welcome is debatable. It does seem to leave a court a wide
discretion as to the questions of extent of loss and time at which it must be
suffered. One wonders just how the court would cope with such open
questions. It may be that, because PECL has not opted to take the estoppel
route, any degree of loss on the part of the third party will be treated as
relevant. If so, one can cautiously welcome the PECL solution as likely to act
in a manner which is beneficial to the third party.
(g) Notice requirement

Finally, PECL provides the third party with a further, more general, weapon
in his armoury where doubt exists over the extent of the agent’s authority.
Article 3:208 PECL contains a mechanism which allows the third party to
obtain clarification of the existence or otherwise of the agent’s authority. It
applies only where the third party’s doubt as to the agent’s authority has been
46
caused by statements or conduct of the principal. The third party is entitled
to send either written confirmation to, or request ratification from, the
43 J E De Villiers & J C Mackintosh , The Law of Agency in South Africa, 3rd edn by J M Silke (1981)
at 449.
44 Fridman, Agency at 49l; Bowstead & Reynolds at para 8–026.
45 William Grant & Sons Ltd v Glen Catrine Bonded Warhouse Ltd 2001 SC 901 at 921 per Lord
President Rodger, citing with approval Dixon J’s definition in Grundt v Great Boulder Pty Gold
Mines Ltd (1937) 59 CLR 641 at 674.
46 Comment B adds that the third party’s belief in the authorisation of the agent must be reasonable
and bona fide.
agency 135
principal. Exactly what is being “confirmed” is not specified, although one

would assume that it is the third party’s confirmation that he considers the
agent to be authorised. A request for ratification, by contrast, would seem to
indicate the opposite, namely that the third party is aware of the agent’s lack
of authority and is requesting the principal to rectify the situation.47 The
principal is then bound to respond to either request “without delay” and, if he
fails in this, the agent is treated as being authorised.
This provision does not appear to be particularly well drafted. The con-
firmation route seems more appropriate looking at the matter from the third
party’s perspective. It appears to permit the third party to “crystallise” the
agent’s authority simply by sending the notice, even if the authority was not,
in fact, present. The result will, of course, be the creation of an actual con-
tract between principal and third party. The ratification route, in theory,
should actually require further action by the principal: he is being requested
to ratify. One wonders therefore why the third party would ever choose the
ratification route, which requires action on the principal’s part, rather than
the confirmation route, which does not. However, this point should not be
overstressed. The value of both routes lies in the short timescale within which
the principal must respond, either by objecting to the confirmation or
refusing the ratification request. On the whole this provision is a useful tool
for the third party. It goes some way towards shifting the balance towards
third party protection. There is an element of recognition that the principal is
at fault for the doubt which has been created, and must be encouraged to
eliminate that doubt as quickly as possible.
In summary, on apparent authority PECL provides Scots and South
African lawyers with a very balanced and useful solution. This is especially so
if, as appears to be the case, the PECL formulation is not based on estoppel.
C. UNDISCLOSED PRINCIPAL: THE DIRECT ACTION
(1) Nature of problem

Where the doctrine of the undisclosed principal operates, in contrast to the
situation of apparent authority, the problem is not the agent’s lack of
authority. Rather, the agent is fully authorised. The controversy lies in the
fact that a principal may instruct an agent to act on his behalf but without
disclosing to the third party either the principal’s identity or even the fact that
47 Comment C does not help to clarify this point. It simply states that the request for confirmation
and ratification “amount to the same thing”.
a principal/agent relationship exists. The third party is under the impression

that he is contracting with the “agent” as a principal. The real principal may,
however, emerge at a later date in order to sue the third party directly.
As is the case with apparent authority, this doctrine can operate harshly
against the third party. It favours the principal unduly by allowing him to
choose whether, and when, to enter the frame in order to sue the third party
directly. It is true that the third party equally has the option of a direct action
against the principal. However, in practice, the third party’s option is much
more limited. It is only available once the third party knows of the principal’s
existence. The principal will only emerge if it is in his interests to do so. Thus,
the third party is usually unaware of the existence of a principal and is there-
fore unlikely to invoke an independent direct action. Practically, he is more
likely to use it as a response to an action by an emerging principal, for
example to avail himself against the principal of those defences and set-offs
which he originally had against the so-called “agent”. This may go some way
towards explaining why there are far fewer reported cases which concern the
third party’s direct action as opposed to the principal’s direct action.
Whether this situation involves any real unfairness to the third party is,
however, a question of some complexity. On the one hand, the third party,
when sued by the principal, is only called upon to do exactly what he con-
tracted to do, i.e. perform, but to a different person. In the famous English
case of Keighley Maxsted & Co v Durant Lord Lindley indicated that it was
generally a matter of indifference to a third party whether an undisclosed
48
principal was in existence or not. He implies that in most commercial con-
tracts the identity of the other contracting party will not be an important issue
to the third party. However, this case was decided in 1901, and one must
query whether commercial parties remain “indifferent” today as to the
49
identity of their contracting parties. Permitting an undisclosed principal to
intervene certainly appears to upset the type of commercial risk assessment
that parties make when they conclude contracts. When he enters into a
contract the third party will assess his risks by reference to a particular
contracting party. When it turns out that that person was secretly acting as an
agent, then that risk assessment is rendered futile. If contracts are about risk
assessment, then the undisclosed principal’s ability to intervene represents a
significant erosion of the third party’s contractual rights.
It is perhaps important to clarify how this unusual doctrine arose. It is
accepted that the current English version grew from the more limited basis
48 [1901] AC 240 at 261.
49 Cf T Cheng-Han, “Undisclosed principals and contract” (2004) 120 LQR 480 at 484, 504.
agency 137
of providing the principal with a direct action against the third party in the
event of the agent’s bankruptcy. To give such a direct action to the principal
where the agent is insolvent may or may not be justifiable. To extend the
doctrine beyond the confines of insolvency takes matters much further. The
modern doctrine gives to the principal an unlimited right to a direct action.
One must query whether this extensive right is justified.

The most striking aspect of the South African doctrine is the evident judicial
motivation to limit the doctrine. The case of Cullinan v Noordkaaplandse
50
Aartappelkernmoerkwekers Koöperasie Beperk. is perhaps the most visible
example of this. In a judgment delivered by Potgieter JA, the Appellate
51
Division accepted the practical effectiveness of the doctrine, but refused to
apply it to permit intervention by more than one undisclosed principal in the
context of one contract. Potgieter JA explained:
one should proceed from the premise that the doctrine … rests on dubious
grounds and that it in any case offends against the basic principles of our law of
contract, viz that only the real parties to a contract incur duties and acquire rights
52
thereunder.
In consequence, he suggested that it would be

undesirable to extend the ambit of the doctrine … to such an extent that an agent
can lawfully contract with a third party on behalf of more than one undisclosed
principal who on the strength of such contract can obtain rights and incur
53
obligations.
The Appellate Division was also motivated by a desire to avoid the practical
difficulties which would be caused for the right of election were several
undisclosed principals to be given the right to intervene. The third party
would be forced to elect to sue either the agent or a number of principals
whom he would be required to sue separately for his pro rata share. Clearly
this would place the third party in a situation of undesirable complexity.
Thus, in this case the Appellate Division, at the same time as accepting
that the doctrine is an established and workable part of South African law,
sought to constrain rather than expand it. Although the court supported its
view by reference to the rule against cession of a portion of a right of action,
50 1972 (1) SA 761 (A).

51 1972 (1) SA 761 (A) at 768E.
52 1972 (1) SA 761 (A) at 770B.
53 1972 (1) SA 761 (A) at 770B.
it seems clear from the language used that the main motivation was concern
for the position of the third party.
Another case which exhibits a similar motivation is Karstein v Moribe.54
Here, the Transvaal Provincial Division refused to allow the undisclosed
principal to intervene where to do so would turn a contract, valid at the point
of formation, into an illegal contract. Ackermann J did not limit himself to the
discussion of the area of illegal contracts. Quoting at length from Potgieter
JA’s opinion in Cullinan, Ackermann J identified the ratio for restriction of
the doctrine in that case as the fear of prejudice to the third party. In an
extensive review of academic writings, not only from South Africa but also
55
from, inter alia, England and Scotland, he concluded:
There is much to be said, in my view, for the opinions of the learned writers I have
referred to above that the limitation of the undisclosed principal’s right to
56
intervene is one based on broad considerations of equity.
One may conclude, therefore, that the South African judiciary have applied
the doctrine of the undisclosed principal with great care, mindful of its status
as an exception to established principles of contract law, and careful to
constrain it as much as possible. The doctrine emerges as possessing a clearer
equitable basis than its equivalents in English or Scots law.
(3) Scots law

In contrast to South African law, Scots law suffers from a lack of modern case
law in which the judiciary have had an opportunity to consider and perhaps
refine the doctrine. As a result, it is probably more interesting for the Scots
lawyer to consider South African law than vice versa. There has been nothing
in Scots law akin to the South African attempts to place the concept on a
more equitable basis.
It seems likely that the concept is one which was received into Scots law
from English law. Little convincing evidence is available which would accur-
ately date the emergence of the concept in England. Only Powell amongst
the English commentators ventures a view, stating that “[t]here is no clear
case of an undisclosed principal before the eighteenth century.”57 The leading
Scottish cases date from the late nineteenth and twentieth centuries and rely
54 1982 (2) SA 282 (T).

55 1982 (2) SA 282 (T) at 295 (where he refers, inter alia, to Walker, Contract, 1st edn (1979), 425–
426).
56 1982 (2) SA 282 (T) at 299.
57 R Powell (1956) SALR 41 at 49.
agency 139
either on English cases, or, instead, the works of Bell, who, in turn, relied on
English cases.58 It should at least be mentioned in this context that a wealth of
analysis on agency and mandate exists in the works of the Scottish Institu-
tional Writers. The author has explored elsewhere the possibility that Scots
law did, in fact, develop its own native concept of the undisclosed principal.59
It is true to say, however, that the benefits of the works of the Institutional
Writers in this respect have been almost wholly lost by the application of
English authorities in the leading Scottish cases.
(4) PECL
(a) General
Article 3:102 PECL classifies representation into direct and indirect, with
the latter being dealt with in Section 3. One might question whether the
retention of this classification is justifiable. The term “indirect representa-
tion” evokes what is the traditionally Civilian attitude, refusing to recognise
direct actions between principal and third party. As the main thrust of the
Articles which follow is to create direct actions, the use of the term “indirect
representation” is misconceived.60 Nevertheless, Article 3:301(1) PECL pro-
ceeds to classify indirect representation into two types. Paragraph (b) equates
with the undisclosed principal, whereas paragraph (a) is the equivalent of
what is known in most European countries as “commission agency”. As the
latter is not part of English law, and therefore did not become part of Scots or
61
South African law, it will not be analysed here.
(b) Clarification of types of contract formed

PECL takes an important step forward in its clarification of the parties to the
62
contract formed when an intermediary acts on behalf of, but not in the
58 See, e.g., Meier v Kuchenmeister (1881) 8 R 642 at 644–645 per Lord Justice-Clerk Moncreiff;
Wester Moffat Colliery Co Ltd v A Jeffrey & Co 1911 SC 346 at 351 per Lord Ardwall; A F Craig
& Co Ltd v Blackater 1923 SC 472 at 482–483 per Lord Justice-Clerk Alness and at 485 per Lord
Ormidale. See also Bell, Commentaries I, 537 (where only one Scottish case, Hood v Cochrane 16
Jan 1818 FC, is cited in addition to English cases).
59 L J Macgregor, “Agency and mandate”, SME Reissue (2002), paras 5–17
60 This term has been dropped from the version which appears in Article 2.2.4 PICC.
61 Whether English law recognises the concept of the commission agent is analysed by D Busch in
“Indirect representation and the Lando Principles: an analysis of some problem areas from the
perspective of English law” (1999) 7 ERPL 319 at 341–346. He identifies some English cases
which could be interpreted as forming a basis for the existence of the commission agent in English
law, but his overall conclusion is that there is no strong evidence suggesting that this is the case.
62 Where indirect agency is at issue, PECL uses the term “intermediary” rather than “agent,” see
Comment A to Article 3:301 PECL.
name of, a principal. Article 3:301(1) PECL states that “the intermediary and
the third party are bound to each other”. The comment indicates that this
conclusion follows because the intermediary did not act in the name of the
principal. This point is far from clear in English law. Some assert that this is
the case.63 The debate rages on, however, and, very recently, others have
appeared in print arguing that a contract is formed from the outset between
the principal and third party notwithstanding the fact that the principal is
64
completely unknown to the third party at that stage. South African and
Scots law appear to adopt a stance similar to PECL on this point. None-
theless, in both the Scots and South African legal systems it is more common
to see commentators assert that this is the correct approach rather than prove
65
it by reference to case law.
The approach asserting that a contract is formed between intermediary/
agent and third party must be preferred here. It would stretch ideas of
consensus in idem too far to hold that a contract is formed between principal
and third party where the third party is completely unaware of the existence
of the principal. English analyses stress the fact that the agent is fully
authorised to make such a contract, and justify its stance on that point alone.
This emphasis completely fails to consider the issue from the third party’s
perspective. PECL makes a significant contribution by adopting what is the
most logical conclusion and clearing up any doubt on the matter.
The direct actions of the principal and the third party emerge as excep-
tions to the general rule in PECL that the intermediary is bound to the third
66
party. Thus, where the principal is entitled to sue, he exercises against the
67
third party the rights which the intermediary has acquired on his behalf,
63 Welsh Development Agency v Export Finance Co Ltd [1992] BCLC 148. R Powell forcefully
argues to this effect: see in particular his description of this point as “an obvious fact” in The Law
of Agency, 2nd edn (1961) at 151 (see also 158, 267). This is also the argument posed by A L
Goodhart & C J Hamson “Undisclosed principals in contract” (1932) 4 Cambridge LJ 320.
64 See Cheng-Han (2004) 120 LQR 480 at 496. See also Keighley Maxsted & Co v Durant [1901] AC
240 at 261 per Lord Lindley.
65 For South African law see J C de Wet (rev B P Wanda) “Agency and representation” in LAWSA,
vol 1 (second reissue 2003) at para 228. This is also the view of the writer of the previous edition
rev A G du Plessis, first reissue 1993) at paras 154, 155. For Scots law see Meier v Kuchenmeister
(1881) 8 R 642 at 646 per Lord Young; J J Gow, Mercantile and Industrial Law of Scotland (1964)
at 525; Macgregor, “Agency and mandate”, SME Reissue, para 149.
66 It is interesting to note how similar the direct actions are to the formulation which appears in the
Dutch Civil Code. This is acknowledged in note 2 to Article 3:302 PECL and illustrated well by D
Busch, E Hondius, H van Kooten, H Schelhaas & W Schrama (eds), The Principles of European
Contract Law and Dutch Law: A Commentary (2002) (henceforth Busch et al, PECL and Dutch
Law).
agency 141
and where the third party is entitled to sue, he exercises against the principal
the rights which he had against the intermediary.68
(c) When direct actions may be exercised

Under PECL, in contrast to the position in Scots and South African law, the
principal/third party is not entitled to exercise a direct action as and when he
wishes. Intervention is only possible in three situations: where the intermedi-
ary becomes insolvent, commits a fundamental non-performance towards
the principal/third party, or commits what could be described as an antici-
69
patory fundamental non-performance towards the principal/third party.
PECL has not opted, therefore, to limit the exercise of the direct actions
to situations of the intermediary’s insolvency only. Fundamental non-
70
performance, defined in Article 8:103 PECL, is clearly a key issue. Non-
performance of an obligation is fundamental to the contract in three types of
case, namely where:
(a) strict compliance with the obligation is of the essence of the contract;
or
(b) the non-performance substantially deprives the aggrieved party of what
it was entitled to expect under the contract, unless the other party did
not foresee and could not reasonably have foreseen that result; or
(c) the non-performance is intentional and gives the aggrieved party reason
to believe that it cannot rely on the other party’s future performance.
“Fundamental non-performance” is a concept within PECL which is rele-
vant not just to agency situations, but rather to contractual situations in
general. Nonetheless, because it has an impact on the exercise of the direct
71
actions, it is useful to analyse it briefly here. The similarity of criteria (a) and
(b) to English law is striking and Note 1 confirms that fundamental non-
performance corresponds “closely to English law”. The notes identify the
English sources of the concepts appearing in (a), (b) and (c) in Article 8:103
72
PECL: (a) corresponds to Bunge Corp v Tradax Export SA, where a similar
test was used to identify a condition as opposed to a warranty; (b) to Hong
73
Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, where Lord

69 Articles 3:302 and 3:303 PECL.
70 See the contribution by T Naudé, “Termination for breach of contract” to this volume, at 282.
71 Naudé, in this volume, at 282.
72 [1981] 1 WLR 711.
73 [1962] 2 QB 26.
Diplock outlined a broadly similar test to define what was a breach of an

intermediate term;74 and (c) takes as its reference point section 31(2) of the
Sale of Goods Act 1979.
There is, however, an important difference between Article 8:103(c) PECL
and English law. Article 8:103(c) PECL is confined to cases of intentional
breach. The motivation of the party in breach is, of course, not usually
relevant in Scots or English law. This therefore introduces a Civilian flavour
to the idea of fundamental non-performance. This provision has not simply
been included as an indicator that the party in breach is likely to carry out a
further breach in the future. Such a role for an intentional breach is unneces-
sary in the context of agency: the possibility of an anticipatory breach is
already included in Articles 3:302 and 3:303 PECL. The role of this provision
is therefore more general. Presumably the aim is to allow certain minor
breaches to be actionable, if they are rendered more serious by an improper
motive on the part of the contract breaker. This is consistent with the overall
role of good faith in PECL as a whole.
Apart from the inclusion of intentional breach in Article 8:103(c) PECL,
the concept of “fundamental non-performance” appearing within PECL is
essentially an English one, and the question which therefore arises is whether
Scots and South African law would find it a useful model. Scots law expressly
rejected the English categorisation into condition and warranty (the inter-
mediate term being a later addition)75 at least as early as 1874.76 Although
there is some evidence of the South African courts using the terms “condition”
and “warranty” to describe the importance of a contractual term, Christie
counsels against this usage, not least because of the confusion caused by the
77
fact that both terms have several different meanings. Both Scots and South
African law use the concept of a material or fundamental breach. In Scotland,
what constitutes a material breach is a notoriously ambiguous question, the
relevant cases rather unhelpfully indicating that whether a breach is material
or not is a question of fact. It has been stated that “[t]he question is the nature
of the breach rather than its consequences, although these may illustrate
78
materiality.” Thus, the Scottish judiciary has quite a wide discretion on this
issue.
74 [1962] 2 QB 26 at 72.
75 [1962] 2 QB 26.
76 Turnbull v McLean & Co (1874) 1 R 730.
77 Christie, Contract at 598.
78 McBryde, Contract at 511.
agency 143
Although not adopting the same unitary approach to breach as Scots law,
materiality is important in South African law, as Naude has illustrated here
and elsewhere.79 Her analysis of Scots and South African case law leads her to
suggest that the factors which appear in Article 8:103 PECL are used by
Scots and South African courts in order to decide whether the breach is
material or not.80 She therefore welcomes Article 8:103 PECL because it
encourages Scots and South African lawyers to formulate more explicitly the
81
factors that courts consider to establish materiality. Thus, although Article
8:103 PECL, with its resemblance to English law, might at first glance appear
to be some distance away from Scots and South African law, this is not neces-
sarily the case. It is, however, inevitable that any attempt to identify all of the
factors which might render a breach either material or fundamental is likely
to fall short in some way. Article 8:103 PECL could therefore be criticised as
lacking the flexibility possessed by Scots and South African law. One must
also take into account the inevitable difficulty inherent in applying what
appear to be new criteria, even if, at the end of the day, they would also be
part of the assessment of a material breach in our native systems.
Looking at the terms of Article 8:103 PECL as a whole, the important
question must be whether the PECL scheme is, as it would first appear,
narrower than the Scots and South African direct actions. It is difficult to
think of a situation in which the principal or third party would want to sue
which would not be covered by PECL’s current formulation. Both non-
performance and anticipatory non-performance are included. The only
rather unlikely situation which might not be covered under PECL would be
where the principal/third party wanted to use a direct action simply because
the “target” had a better financial reputation than the agent. The difference
between PECL and Scots/South African law therefore boils down to the
difference between material breach and the less flexible and possibly
narrower concept of fundamental non-performance appearing within PECL.
Much would depend upon how this concept was interpreted. The conclusion
must, therefore, be that the PECL formulation is not substantially narrower
than that appearing in Scots or South African law.
79 Naudé, in this volume, particularly at 283; and see also T Naudé & G Lubbe, “Cancellation for
‘material’” or ‘fundamental’ breach: a comparative analysis of South African law, the UN Con-
vention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles
of International Commercial Contracts” (2001) 3 Stellenbosch LR 371.
80 Naudé, in this volume at 284.
81 Naudé, in this volume at 285.
D. UNDISCLOSED PRINCIPAL: THE NOTICE REQUIREMENT
(1) General
Article 3:304 PECL applies a notice requirement to the exercise of the direct
actions. Before exercising a direct action, the party bringing the action must
inform the “target” of the action that he intends to do so. Thus the principal
intending to exercise a direct action against the third party must serve notice
of his intention to do so on the third party, and vice versa in relation to the
third party exercising his direct action on the principal. There is no require-
ment that the notice be in writing.
Whether serving a notice has a substantive effect rather than simply
alerting the “target” to an impending action is a difficult question. Comment
A to this Article indicates that serving notice crystallises the moment at which
the “transfer or delegation becomes effective”. In other words, where, for
example, the principal is exercising a direct action, the notice marks the point
at which the principal “steps into” the contract originally concluded between
intermediary and third party. The language used by PECL in the comment,
“transfer or delegation”, is very imprecise and this is perhaps not surprising.
Exactly what happens to the contractual structure when the principal
intervenes is a question which has never been resolved in English law.
Clearly, it is not a valid assignation or delegation of rights. The drafters of
PECL have accepted the prevailing view that the transfer of rights cannot be
explained using normal contractual principles. The ability to exercise a direct
action under PECL must be accepted as an anomaly and, as in English law,
82
justified purely on the basis of commercial convenience.
(2) Interplay with rules on election

PECL is silent on an issue which has received a good deal of attention in
Scots and South African law. This is the operation of the rules on election.
Both Scots and South African law emphasise that the party exercising a direct
action must elect which of the other two parties to sue, and, having made that
election, cannot additionally sue the other party if the initial case failed fully
to compensate him.83 Liability is described as “alternative” in both of those
82 Fridman, Agency at 254; Bowstead & Reynolds at para 8–071.

83 In Scots law see, e.g., Macgregor, “Agency and mandate”, SME Reissue, paras 155–156; A F
Phillips, “Agency: some elections and reflections” 1993 JR 133. For South African law see Natal
Trading and Milling Co Ltd v Inglis 1925 TPD 724 and Talacchi v The Master 1997 (1) SA 702 (T)
and comment by Wanda, LAWSA, vol 1 (2002 reissue) at para 232.
agency 145
legal systems.84 In one of the leading South African cases it was stated that
“once the cause of action against either of the two is exhausted by reason of a
judgment taken, there can be no room in principle for enforcing that same
claim against the other”.85 It is not clear under PECL whether, once notice
has been served on the “target” that an action is impending, a further action
would be available against the intermediary to recover any sums which
remain uncompensated. Those more familiar with the position under English,
Scots and South African law would tend to the, probably emphatic, view that
a further action could not be available. However, the provisions concerning
the direct actions under PECL are, in general, very similar to those contained
86
in the Dutch Civil Code. In Dutch law, where the third party is exercising
his direct action, the intermediary is not released by an unsuccessful, or
87
partially successful, action against the principal. The principal and the inter-
mediary remain jointly liable. Dutch authors have urged that PECL should
88
be interpreted in the same way. This interpretation is, however, not con-
vincing, given that PECL is entirely silent on the question. Dutch law
contains no similar protection for the principal – only the third party has the
ability to sue first the principal and then the intermediary.
(3) Effect of performance to wrong party

The notice requirement also tackles the practical problems which can ensue
where doubt exists as to whom the principal/third party should perform.
There is always a possibility that, for example, the third party may perform to
the agent at a time when the principal has become disclosed and seeks
performance to be rendered to him. This possibility arises because it is often
difficult to pinpoint exactly when the principal emerges. He will probably be
disclosed, not through a single definite act, but rather through a combination
of facts and circumstances. That being the case, the third party may, for a
time, be in some doubt as to whether to perform to the agent or to the newly
emergent principal. Say, for example, that after such an ambiguous disclosure
the third party tenders performance to the agent and this is closely followed
84 For Scots law see Gloag, Contract at 140; David Logan & Sons Ltd v Schuldt (1903) 10 SLT 598;
British Bata Shoe Co v Double M Shah Ltd 1980 SC 311. For South African law see Talacchi v The
Master 1997 (1) SA 702 (T) at 709 per Vorster AJ.
85 Talacchi v The Master 1997 (1) SA 702 (T) at 709 per Vorster AJ.
86 See Note 2 to Article 3:302 PECL and comment by Busch et al, PECL and Dutch Law at 176–
190.
87 Article 7:421 BW.
88 Busch et al, PECL and Dutch Law at 189.
by the agent’s insolvency. One would have to consider whether it would be

fair to force the third party to render further performance to the principal.
PECL does not provide an answer to this question. However, the effect of the
notice requirement in Article 3:304 PECL avoids this becoming an issue.
The emerging principal is forced unequivocally to indicate that the direct
action is about to be exercised. Thus notified, the third party would be foolish
to perform to the intermediary, and one would assume that the third party
could be asked to pay again if he had ignored such a notice from the principal.
Similarly, by serving notice on the principal that he is about to exercise a
direct action, the third party avoids the possibility of the principal performing
to the intermediary.
Scots and South African law do not, of course, contain such a notice
requirement. The clarification of the actual legal effect of prior performance
which is provided by PECL is therefore useful. Dealing first of all with the
situation where the principal has already paid the agent, and the third party
nevertheless calls on the undisclosed principal to pay, the Scots approach is
confused. This appears to be a direct result of the application of English law,
which has veered between two approaches: a wider approach, stipulating that
the principal may be called upon to pay twice provided that the state of
account between principal and agent is not altered to the prejudice of the
principal;89 and a narrower one stipulating that the matter is resolved by
estoppel, as a result of which the principal can be called upon to pay again
90
unless the third party has induced the principal into paying. The application
of estoppel reasoning to this situation has been criticised by the author
91
elsewhere. Where the third party is unaware of the existence of the
undisclosed principal, it is difficult to see how he could have induced the
principal to settle with the agent. Nevertheless, Bell, relying only on English
92
cases, indicated that Scots law rested on personal bar. The leading Scottish
93
case appears, however, to favour the wider rule stated above.
There appears to be very little South African authority on this issue. Wanda
94
refers to a case which suggests that the principal cannot be forced to pay
95
again, before rejecting this approach.
89 Thomson v Davenport (1829) 9 B & C 78.

90 Heald v Kenworthy (1855) 24 LJ Ex 76, 10 Ex 739; Irvine & Co v Watson (1874) QBD 414.
91 See the explanation in Macgregor, “Agency and mandate”, SME Reissue at para 163.
92 Bell, Commentaries, I, 537.
93 Bennett v Inveresk Paper Co (1891) 18 R 975.
94 O’Leary v Harbord (1888) 5 HCG 1.
95 Wanda, LAWSA, vol 1 (2002 reissue) at 232.
agency 147
Turning now to the principal’s direct action and the question of whether
the third party’s payment to the agent absolves him, or whether in Scots and
South African law he may be called upon to pay again, there must be an even
stronger argument that the third party is absolved from liability. This appears
to be the stance of both Scots96 and South African law.97 English cases which
apply estoppel as a solution to this situation, in a manner similar to that
described above in the context of the principal being required to pay again,
98
should be rejected.
Whether a party who has already paid the agent can be called upon to pay
again is clearly a difficult issue in Scots and South African law. By seeking,
through the notice requirement, to avoid such a situation ever arising, PECL
offers an attractive solution.
(4) Summary of comments on notice requirement

Notice requirements like that to be found in Article 3:304 PECL are common
99
throughout the Principles. This one obviously serves a useful purpose. The
disadvantages of notices should nevertheless be borne in mind. The ability to
transact business with the minimum of expense and loss of time is a high
priority for commercial parties. Where a notice requirement applies, such
parties will tend to consult solicitors for advice concerning the drafting of a
notice, being unwilling to take the responsibility of ensuring that the notice is
appropriately worded (although no specific form is stipulated in Article 3:304
PECL). One could accuse PECL of introducing an unduly cumbersome
mechanism into an area which is characterised by practical ease in English
law. Despite these practical objections, the notice requirement is welcome.
The moment at which the change in the identity of the contracting parties
occurs must be identified in some way, as the Scots and South African rules
on election illustrate. The disadvantages are perhaps the price to pay for the
continued use of the doctrine of the undisclosed principal.
One further point can be made about the notice requirement in Article
3:304 PECL. As stated above, the third party will very rarely institute an
independent action against a previously undisclosed but now disclosed
96 Gloag, Contract at 130–131.

97 Wanda, LAWSA, vol 1 (2002 reissue), para 230, indicates that there is no South African case which
is directly in point on this issue, but makes reference to Innes CJ in Symon v Brecker 1904 TS 745
at 747 where he states that “payment to the agent would be a full discharge; the principal could
not demand payment over again”.
98 Ramazotti v Bowring (1859) 7 CBNS 851; Drakeford v Piercy (1866) 7 B & S 515.
99 See, e.g., the third party’s ability through a notice to obtain confirmation of the agent’s authority in
Article 3:208 PECL.
principal. This is because the principal is unlikely to emerge unless it is in his

interests to do so. As a result, it will almost always be the case that the
principal is exercising a direct action against the third party, and the third
party is exercising a right to counterclaim. Given the rare incidence of third
party direct actions, the third party will use the notice requirement equally
rarely. Presumably the third party would not be required to serve notice on
the principal if he was counterclaiming. To require otherwise would seem
superfluous – the third party is already being sued by the principal and is
simply reacting to the principal’s case. Nevertheless, there might be an
argument that the third party is still under an obligation in terms of Article
3:304 PECL to serve notice on the principal that he intends to counterclaim.
In order to avoid any doubt on the issue, it would have been preferable had
this point been covered in Article 3:304 PECL.
E. UNDISCLOSED PRINCIPAL:
AVAILABILITY OF DEFENCES AND COMPENSATION/SET OFF
(1) Exercise of principal’s direct action
As stated above, the essence of the principal’s direct action is found in Article
3:302(b) PECL: he is entitled to exercise against the third party the rights
acquired on his behalf by the intermediary. The Article also deals with the
defences which the third party can exercise against the principal if sued by
the principal. Whether the reference to defences includes rights to claim
compensation/set-off is not specified100 but may be assumed.101 As can be
expected, the guiding principle is that the third party should be in no better
or worse position than he would have been in had the principal not emerged.
Article 3:302(b) PECL therefore provides that the principal will be subject to
any defences which the third party may set up against the intermediary.
Whilst this seems to be a sensible approach, it is interesting to note that English
law provides the third party with more protection than PECL in this type of
102
situation. In addition to the ability to exercise against the principal all
defences which he would have had against the agent, the third party is also
100 See the wording of Articles 3:302(b) and 3:303(b) PECL.

101 A similar assumption is made by the authors of Busch et al, PECL and Dutch Law at 179, 185;
although subject to one reservation which is commented on at note 106 below. It should be
recalled that these provisions in PECL are very similar to those contained in the Dutch Civil
Code.
102 An excellent and very full comparison of the protections provided by PECL and those provided
by English law can be found in Busch et al, PECL and Dutch Law at 332–334.
agency 149
entitled to set up against the principal all defences he would have had against
the principal, had the principal himself and not the agent made the contract.103
This additional right of the third party can only be rationalised on the basis
that English law treats the contract as formed between principal and third
party from the outset although, as already discussed, there is little agreement
on this point. PECL specifically rejects this analysis, and therefore it would
not be appropriate to include this additional protection for the third party in
Article 3:302(b) PECL. The approach of PECL in this respect is the same as
104 105
that which currently exists under Scots and South African law. There is
no evidence in either system of the additional right provided by English law.
As such, the attitude of PECL is likely to be acceptable to both jurisdictions.
(2) Exercise of third party’s direct action

The provisions concerning the use of defences where the third party exer-
cises his direct action are not exact reflections of those which apply where the
principal exercises his direct action. In terms of Article 3:303(b) PECL the
principal who is subject to a direct action from the third party can utilise two
sets of defences: first the defences which the intermediary had against the
third party; and secondly the defences which the principal had against the
intermediary. The first set of defences is uncontroversial – again, the aim is to
minimise the impact of the exercise of the direct action. The third party
would have been subject to such defences had he sued the intermediary, and
so should remain subject to them in the event of suing the principal.106 How-
ever, the second set is more controversial. The emergence of the principal is
a surprise to the third party. Not having asked to be put in this situation, it
seems slightly unfair to subject him to issues existing between the principal
and the intermediary of which he can have had no notice. Comment E to
Article 3:303(b) PECL justifies this approach by pointing out that the
“principal has a pre-existing underlying relationship with the intermediary”.
This is in contrast to the situation where the principal’s direct action is being
exercised: the third party has no pre-existing relationship with the intermediary,
103 Bowstead & Reynolds at 432–433.

104 Bennett v Inveresk Paper Co (1891) 18 R 975. In relation to rights to claim compensation see
Gloag, Contract at 131–132.
105 Wanda, LAWSA, vol 1 at 230.
106 This is, however, the one reservation expressed by Busch et al, PECL and Dutch Law at 185, in
relation to whether the word “defences” in Articles 3:302(b) and 3:303(b) PECL always
includes rights to set off. In their opinion, although the principal can exercise against the third
party the defences which the intermediary would have had against the third party, it is not clear
whether this would include rights of set–off.
hence the lack of a similar provision in Article 3:302 PECL. Again, it is

interesting to note that PECL, in taking this stance, is more severe on the
third party than English law would be. In English law, where the principal is
sued by the third party, he is not entitled to set off against the third party a
claim that he has against the agent,107 nor plead any defence that he had
against the agent.108
No Scots cases have been found exploring the same question, perhaps
because, as noted above, the third party, not knowing of the principal’s exist-
ence, exercises his direct action rarely, and usually in the form of a counter-
claim. South African law appears to be equally ambiguous. Kerr notes that:
“In Natal Trading & Milling Co Ltd v Inglis it was stated that the third party’s
election to sue the principal is said to be ‘subject to such equities … as the
109
occasion may give rise to’”; but no examples are given. Apparently this
point has not been explored in either Scots or South African law. The door is
therefore open for both jurisdictions to follow either PECL, with its more
severe approach towards the third party, or English law, with its more lenient
approach.
F. CONCLUSION
The PECL framework for indirect representation and apparent authority is
likely, on the whole, to be acceptable to Scots and South African lawyers. It is
clear that the Common Law has been highly influential in the modelling of
the PECL provisions, and, as a result, they are similar to both Scots and
South African law. The main improvements which PECL has made are
procedural rather than substantive. Examples of such welcome improve-
ments include the rejection of estoppel as a basis for apparent authority, the
clarification of the parties to the contract, and use of the notice requirement
in the exercise of the direct actions in indirect representation. The PECL
scheme is, however, a relatively “traditional” one. PECL offers no significant
gains in third party protection. It may be that to make such gains would
involve too radical a scheme to be acceptable to those drafting PECL. Some
relatively minor criticisms have been made in the course of this chapter: for
example, the lack of any reference to election is regrettable. The PECL
scheme, in general, emerges as practical, workable and sensible, and one
which could be adopted by Scots or South African law with relative ease.
107 Waring v Favenck (1807) 1 Camp 85; Kymer v Suwercropp (1807) 1 Camp 109.
108 Busch et al, PECL and Dutch Law, 333.
109 Kerr, Agency at 271, citing Natal Trading & Milling Co Ltd v Inglis 1925 TPD 724 at 727.
6 Threats and Excessive
Benefits or Unfair Advantage
Jacques du Plessis*
A. INTRODUCTION
B. ARTICLE 4:108 PECL: THREATS
(1) The effect on the victim: the quality of the fear and reasonableness of
the conduct
(a) The overborne will approach
(b) Reasonable fear
(2) Nature of the threats and affected interests
C. ARTICLE 4:109 PECL: EXCESSIVE BENEFIT OR UNFAIR
ADVANTAGE
(1) Introduction
(2) Anticipating Article 4:109 PECL – undue influence in mixed systems
(3) Learning from Article 4:109 PECL: cases of weakness falling outside
undue influence
(a) Article 4:109 PECL from a Civilian perspective: laesio enormis and
usury
(b) Article 4:109 PECL from a Common Law perspective: undue
influence and unconscionability
(c) Article 4:109 PECL and the current position in mixed legal systems
(d) Article 4:109 PECL and the future development of mixed legal
systems
D. ARTICLE 4:111 PECL: THIRD PERSONS
E. CONCLUSIONS
A. INTRODUCTION
Chapter 4 of PECL deals with certain factors that affect the validity of a
1
contract. These include threats (Article 4:108 PECL) and excessive benefit
* This paper was presented at the Oxford University Comparative Law Discussion Group on 3 Dec
2004, as well as at the conference for this volume in Edinburgh. I would like to express my
gratitude to the organisers of these events for their respective invitations and to the participants
for their valuable comments.
1 The other factors are initial impossibility (Article 4:102 PECL), mistake (Articles 4:103–4:106
PECL), fraud (Article 4:107 PECL) and unfair terms not individually negotiated (Article 4:110
PECL). Chapter 4 does not deal with invalidity arising from illegality, immorality or lack of
capacity (Article 4:101 PECL), for which see Chapter 15.
151
or unfair advantage (Article 4:109 PECL).2 The close relationship between

these factors has been appreciated for some time – as long ago as 1937 Pro-
fessor John P Dawson argued forcefully that the problem of economic duress
in particular cannot be divorced from the larger problem of the fair exchange.3
In that essay Dawson stressed that an appreciation of the development of
these concepts in Civil Law systems could help Common lawyers understand
certain developments in their own system. But here the aims are somewhat
different. The first aim is to test the proposition that many of the solutions
found by the draftsmen of PECL have been anticipated in the mixed systems
of South Africa and/or Scotland, while the second aim is to evaluate the laws
of contract of these systems from a comparative perspective. This could reveal
either the need to modify PECL in the light of the experiences of the mixed
4
systems, or to draw lessons from PECL for their further development.
B. ARTICLE 4:108 PECL: THREATS

Two areas of the Scots law of force and fear and the South African law of
duress merit comparison with Article 4:108 PECL. The first of these areas
concerns the effect which the force and fear or duress have on the victim and
the second with the conduct of the wrongdoer.5
(1) The effect on the victim: the quality of the fear and reasonableness
of the conduct
In line with a number of modern Civilian systems,6 Article 4:108 PECL does
2 Cf J P Dawson, “Economic duress and the fair exchange in French and German law” (1937) 11
Tulane LR 345 at 346.
3 (1937) 11 Tulane LR 345 at 346; (1937) 12 Tulane LR 42.
4 On the historical development of the concepts of force and fear or metus, as well as undue
influence in mixed legal systems, see G F Lubbe, “Voidable contracts”, in Zimmermann & Visser,
Southern Cross, 261; J E du Plessis, “Force and fear”, in Reid & Zimmermann, History, 101–128.
For a comparison of the relevant Scots and South African law see J E du Plessis and W W
McBryde, “Defects of consent” in Zimmermann, Visser & Reid, Mixed Legal Systems, 117–142.
5 Depending on the emphasis placed on these two dimensions of duress, it is possible to group legal
systems into two categories. It has been said that systems primarily focusing on the effect on the
victim are “result oriented”, while systems focusing on the conduct of the person responsible for
the duress are “means oriented”. See E A Kramer & T Probst, “Defects in the contracting
process”, International Encyclopedia of Comparative Law, vol VII/11 (2001) (henceforth Kramer
& Probst, “Defects in the contracting process”), para 387 n 1640. In this context the distinction
drawn in A Wertheimer, Coercion (1987), between the “choice” and “proposal” prongs of
coercion, is also relevant. The “choice” prong focuses on the effect on the victim, while the
“proposal” prong focuses on the means used.
6 See, e.g., § 123 BGB; Article 3:44 BW; on the limited number of modern codes that do refer to
fear, see Kramer & Probst, “Defects in the contracting process”, para 362.
threats and excessive benefits or unfair advantage 153
not require that the victim acted under fear (metus).7 It is only said that
threats of a certain quality must have “led” the victim to contract. This
indicates that a causal link should exist between the threat and the contract,
without any fear necessarily being present. Unlike earlier Civilian authority,
Article 4:108 PECL therefore does not explicitly link force/threats (vis) with
the effect of fear (metus). The mixed systems, in turn, still remain faithful to
the earlier Civilian approach by regarding fear as a requirement of a claim of
“force and fear” or duress. It is quite clear, though, that it is not sufficient for
victims to allege that they were afraid. The mixed systems require the fear to
be of a certain quality.
(a) The overborne will approach

First, some Scottish judgments maintain that fear has to “overpower” the
mind of the victim. These judgments then refer to certain English authorities
which maintain that duress requires the victim’s will to be “overborne” and
8
that his consent should be “vitiated”. This “overborne” or “vitiated” will or
9
consent theory has been severely criticised in the Common Law. A major
objection has been that duress does not vitiate consent in the sense that the
10
victim’s will is destroyed. The victim acts willingly in the sense that he inten-
tionally brings about a certain result. But the victim does not act willingly in
the sense that he desires such a result. These objections to the overborne will
theory have also been raised in the Scottish context.11 In fact the influence of
7 It seems warranted not to require fear where the threat in any event so inconvenienced or
irritated the victim that he was induced into concluding the contract (but cf Kramer & Probst,
“Defects in the contracting process”, paras 421, 443, who seem to maintain that the emotion of
fear is essential to provide the causal link between the threat and conclusion of the contract). If
the victim’s will had indeed been vitiated in the sense of being rendered totally nugatory, he would
also not be bound, but then other provisions come into play (see Articles 2:101 and 2:102 PECL
on the intention requirement, as well as the Comment accompanying Article 4:108 PECL). The
subjection of a person to actual physical violence, as opposed to threatened violence, but without
vitiating his will (e.g., through imprisonment) is rather problematic – PECL, like some Civil Law
systems, pass it over in silence (see Kramer & Probst, “Defects in the contracting process”, para
393 n 1669).
8 See Hislop v Dickson Motors (Forres) Ltd 1978 SLT (Notes) 73 at 75; Mahmood v Mahmood 1993
SLT 589 at 592B; du Plessis, in Reid & Zimmermann, History, 106–107 especially n 41; du Plessis
and McBryde, in Zimmermann, Visser & Reid, Mixed Legal Systems, 125.
9 See P S Atiyah, “Economic duress and the overborne will” (1982) 98 LQR 197; R Halson,
“Opportunism, economic duress and contractual modifications” (1991) 107 LQR 649 at 665 ff.
On the general decline of the theory, see Kramer & Probst, “Defects in the contracting process”,
para 363.
10 See the speech of Lord Simon of Glaisdale in Lynch v DPP of Northern Ireland [1975] AC 653 at
695.
11 In response to an article by A Thompson, “Economic duress” 1985 SLT (News) 84, Professor
Ewan McKendrick commented that, “[g]iven these criticisms of the overborne will theory, it
English upon Scots law is rather ironical in this respect. The roots of the Scots
law of force and fear are Civilian. And one of the basic tenets of the Roman
law of (vis et) metus was the statement by Paulus in D 4.2.21.5 that “that
which is willed under compulsion is nonetheless willed” (voluntas coacta
tamen voluntas est), a principle which has gained general acceptance in the
Civilian tradition.12 Even English lawyers have come to prefer this principle
to the overborne will approach. For example, Paulus’s text was expressly
13
referred to in Lynch v Director of Public Prosecutions of Northern Ireland.
The experience of Scots law in being influenced by English law in this
particular context has therefore not been positive. The challenge, as modern
Civilian systems and PECL, as well as a number of Common Law lawyers
have come to accept, is rather to determine what circumstances lead a person
to do something that he does not desire to do, and especially what threats of
harm contribute to this result.
But one qualification has to be added to the criticism above of the
overborne will theory. It is only warranted if the portrayal of the “overborne
will” or “vitiated will” as one characterised by an absence of consent is indeed
accurate. According to the most recent (11th) edition of Professor Treitel’s
Law of Contract,
[t]he view that consent is ‘vitiated’ has been criticised but the criticism appears to
be based on a misrepresentation of it: what it seems to mean is, not that consent is
14
negatived, but that it has been improperly obtained.
15
In the case of The Universe Sentinel, for example, there would only be eco-
nomic duress vitiating the consent to agree to make certain payments if the
threat was illegitimate. Upon such an analysis, the position in English law,
and presumably Scots law, would be closer to that of PECL and modern
Civilian systems than has traditionally been understood.
should cause the Scottish lawyer grave concern that it still appears to form the basis of force and
fear” (“Economic duress – a reply” 1985 SLT (News) 277).
12 See Kramer & Probst, “Defects in the contracting process”, para 363.
13 [1975] AC 653 – Lord Simon tellingly adding that “I do not cite this merely for antiquarian
interest” (694 ff).
14 At 405.
15 Universe Tankships Inc of Monrovia v International Transport Workers’ Federation, The
Universe Sentinel [1983] 1 AC 366.
(b) Reasonable fear

A second, closely related dimension of the victim’s position is the require-
ment in both South African and Scots law of the victim’s fear to have been
16
“reasonable”. This requirement originated in Roman law, which valued
17
resoluteness highly, and embodied it in the homo constantissimus. Roman
law in turn apparently influenced early English law. For example, Bracton’s
treatment of duress, borrowed from the Glossators, refers to the standard of
18
the constant man. However, over time this standard declined in popularity.
By the end of the nineteenth century, English law clearly had departed from
the notion that the fear had to be such as “would impel a person of ordinary
courage and resolution to yield to it”,19 while in the Civil Law context the
drafters of the German Civil Code rejected the notion that the victim’s fear
should be reasonable.20 A key consideration underlying this decision was that
it is precisely the weak person whom the legal order should protect.
Against the background of these developments we can proceed to examine
the requirement in Article 4:108 PECL that a claim should be refused if the
victim had a “reasonable alternative” to enter into the contract. The
implication is that persons should not simply submit to threats, but that they
21
should display a measure of constancy. Ultimately, systems can of course
differ about the extent to which they expect some resistance from those faced
with threats of harm. German law, for example, does not enquire whether a
reasonable third party in the position of the victim would have done the
22
same, had alternative courses of conduct been available. Whether such a
requirement should be imposed essentially involves a value judgment.
But it may be that the “absence of a reasonable alternative” requirement
can serve another, somewhat disguised, purpose. According to Comment E
to Article 4:108 PECL, the absence of a reasonable alternative “suggests that
the threat was not the real reason for the threatened party agreeing to the
16 See J E du Plessis, Compulsion and Restitution (2004) (henceforth Du Plessis, Compulsion and
Restitution), 38–39, 101, 130.
17 Gai D 4.2.6.
18 Bracton, De Legibus et Consuetudinibus Angliae (S E Thorne ed, 1958) folios 16b and 103b (pp
64 and 296 in the Thorne edition); compare Azo, Summa Codicis (1552) 2.19 no 3, and further see
J P Dawson, “Economic duress – an essay in perspective” (1947) 45(3) Michigan LR 253 at 255;
T Schindler, Rechtsgeschäftliche Entscheidungsfreiheit und Drohung – die englische duress-
Lehre in rechtsvergleichender Perspektive (2005) (henceforth Schindler, Rechtsgeschäftliche
Entscheidungsfreiheit und Drohung), 68–69.
19 Cf Scott, falsely called Sebright v Sebright (1886) 12 PD at 21, 24.
20 B Mugdan (ed), Die gesammten Materialien zum Bürgerlichen Gesetzbuch für das Deutsche
Reich, vol 1 (1899), 208; see Schindler, Rechtsgeschäftliche Entscheidungsfreiheit und Drohung, 25.
21 See Halson (1991) 107 LQR 649 at 669.
22 Schindler, Rechtsgeschäftliche Entscheidungsfreiheit und Drohung, 27.
demand” (own emphasis). This indicates that the purpose of the no “reasonable
alternative” requirement may be to assist, in a rather roundabout manner,
with determining that a causal link exists between a threat and the decision of
the victim to conclude a contract.23 There are further indications that the
question whether the absence of a reasonable alternative requirement serves
this function is also of central importance in modern English law. 24
These developments are also relevant to mixed systems. They too have to
establish more clearly why it is necessary to disqualify the victim whose fear
is not reasonable or who does not avail himself of reasonable alternatives. And
they especially need to determine whether requirements such as these do not
merely indirectly indicate that an insufficient causal link exists between
25
threat and conduct. In the South African context it can for example be argued
26
that the purpose of the reasonable fear requirement is to determine causality.
However, this does not mean that all duress issues should be reduced to
merely identifying a wrongful threat and then causally linking it to the victim’s
conduct. In this regard lawyers in mixed systems as well as those interested in
PECL would do well to follow debates in English law about the relevance of
the absence of a reasonable alternative when dealing with economic duress. It
may well be that in this context a greater justification exists for requiring that
the victim should display resilience, compared to the traditional cases of threats
of physical harm.27 Such a differentiated approach deserves serious consider-
ation by those who need to apply the reasonable fear requirement of mixed
systems and the absence of reasonable alternative requirement of PECL.
(2) Nature of the threats and affected interests

According to Article 4:108 PECL the threat has to be either wrongful in itself,
or it must be wrongful to use the threat as a means to obtain the conclusion of
the contract. Such an abstract, threat-based approach is typical of modern
28 29
Civilian systems. However, it is obviously vague and needs to be fleshed out.
23 See Schindler, Rechtsgeschäftliche Entscheidungsfreiheit und Drohung, 217–218.

24 See D Nolan, “Economic duress and the availability of a reasonable alternative (Huyton v Peter
Cremer)” (2000) 8 RLR 105 at 112–113.
25 See generally Du Plessis, Compulsion and Restitution, 130.
26 Du Plessis, Compulsion and Restitution, 130.
27 See the analysis of the economic duress case Huyton SA v Peter Cremer GmbH and Co [1999] 1
Lloyd’s Rep 620 in Nolan (2000) 8 RLR 105 at 112–113; cf also S A Smith, “Contracting under
pressure: a theory of duress” (1997) 56 Cambridge LJ 343.
28 Kramer & Probst, “Defects in the contracting process”, para 387.
29 Kramer & Probst, “Defects in the contracting process”, para 415, referring to an approach of
“statutory silence”.
The question now arises whether mixed systems, which are well acquainted
with this abstract approach,30 and which have also demonstrated that at times
they are able to flesh out general principles by resorting to Common Law
authority,31 have anything of value to offer in this context. Here it is of parti-
cular interest that a limited number of cases on economic duress have
generated a wealth of analysis in Common Law jurisdictions.32 Unfortun-
ately, it has not been appreciated in mixed systems that, without blindly
following English law, guidance may be obtained from these analyses of
33
threats of economic harm. This is somewhat ironical given that English
lawyers increasingly appreciate that an unlawful threat is a cornerstone of
34
economic duress. Had mixed systems been more creative in resorting to
Common Law materials in this context, they could have provided valuable
guidance in fleshing out the abstract requirement in Article 4:108 PECL that
35
a threat has to be wrongful in itself or has to have a wrongful purpose.
30 South African law requires a “threat or intimidation” which is “unlawful or contra bonos mores”
(see Broodryk v Smuts NO 1942 TPD 47, BOE Bank v Van Zyl 2002 (5) SA 165(C) paras 36 ff, 49
ff; Shoprite Checkers (Pty) Ltd v Jardim 2004 (1) SA 502 (O), while Scots law recognises that the
method of instilling fear has to be illegal or unwarrantable, or, conversely, that a lawful threat
cannot be actionable; see Du Plessis and McBryde, in Zimmermann, Visser & Reid, Mixed Legal
Systems, 127.
31 A notable example is the South African law of delict.
32 This is not to say that Civilian systems do not recognise that cases of economic duress fall within
the scope of unlawful threats – but, as Kramer & Probst remark, the statutory basis for economic
duress in Civilian systems does not make it any easier to decide whether it renders a contract
voidable (“Defects in the contracting process”, para 419); also see A Hadjiani, “Duress and undue
influence in English and German contract law: a comparative study on vitiating factors in
Common and Civil Law” 2002 Oxford University Comparative Law Forum 1 at http://ouclf.
iuscomp.org, part IV (b) (cc) (accessed on 31 March 2005).
33 In both Hendricks v Barnett 1975 (1) SA 765 (N) and Van den Berg and Kie Rekenkundige
Beamptes v Boomprops 1028 BK 1999 (1) SA 780 (T) the requirement that the threat has to be
contra bonos mores could have been given greater meaning through creative use of comparable
English material without having to accept that South African law has taken over English legal
principles relating to duress, and economic duress in particular, or that such principles should
necessarily determine legal developments in South Africa. South African courts are obliged to
apply the English law of economic duress in admiralty law (see Malilang v MV Houda Pearl 1986
(2) SA 714 (A)). The Namibian Labour Court did not sufficiently appreciate in Vlasiu v President
of the Republic of Namibia 1994 R 332 (LC) that Malilang was an admiralty case, and that English
law consequently had to be applied.
34 Treitel, Contract, 405–406; J Cartwright, Unequal Bargaining (1991) (henceforth Cartwright,
Unequal Bargaining), 163 ff; J Cartwright, “Defects of consent and security of contract: French
and English law compared”, in P Birks and A Pretto (eds), Themes in Comparative Law in
Honour of Bernard Rudden (2002), 153 at 162. It should be noted, though, that the threat must
still have a “coercive effect”: “no particular type of threat is regarded as ipso facto having such
effect or being incapable, as a matter of law, of producing it”.
35 See Note 2 to Article 4:108 PECL (vol 1, 260).
C. ARTICLE 4:109 PECL: EXCESSIVE BENEFIT OR UNFAIR

ADVANTAGE
(1) Introduction
In the previous section it was relatively easy to link a specific provision of
PECL, namely Article 4:108 PECL on threats, with specific areas of Scots
and South African law, namely force and fear and duress, respectively.
Unfortunately, the position is not that simple when dealing with Article 4:109
PECL. The heading “excessive benefit or unfair advantage” is somewhat
misleading. The Article does not only deal with the essentially “substantive”
matters of excessive benefit or unfair advantage. It also contains other
“procedural” requirements. As the definition indicates, the aggrieved party
had to be in some position of weakness which the other party either knew
about or should have known about, and then took advantage of. It is only after
this subtle shift in emphasis that it becomes clearer that Article 4:109 PECL
can be linked to certain grounds for avoiding contracts in mixed legal
systems. These grounds are undue influence in both Scots law and South
African law, and facility and circumvention in Scots law.
(2) Anticipating Article 4:109 PECL – undue influence in mixed

legal systems
In line with the aims of this volume, it will first be enquired whether Article
4:109 PECL has been anticipated in the mixed systems of South Africa and/
or Scotland. To answer this question, some insight into their respective
historical backgrounds is necessary. The story has already been told else-
36
where, and only the following summary needs to be provided.
In the latter half of the nineteenth century, the need was felt in both
Scotland and South Africa to provide relief in certain situations that could not
37
easily be accommodated under the existing defects of consent. These were
situations where the parties stood in an unequal relationship, involving some
influence of the one over the other, but where there was neither a threat of
harm or metus, nor conduct that could be described as fraudulent or invol-
ving dolus. Scots law further recognised an off-shoot of fraud called “facility
and circumvention”, but this ground for relief was only available where a
36 See Du Plessis & McBryde, in Reid & Zimmermann, History, 117–142.

37 See Du Plessis & McBryde, in Reid & Zimmermann, History, 128 ff; Lubbe, in Zimmermann &
Visser, Southern Cross, 287. In South Africa, the reception was rather tentative and undue
influence was only clearly recognised in Armstrong v Magid 1937 AD 260 (see Lubbe, in
Zimmermann & Visser, Southern Cross, 288; Preller v Jordaan 1956 (1) SA 483 (A) at 506).
person took advantage of the weak-mindedness or facility of another, and

thereby induced a disadvantageous contract.38 Facility and circumvention
was not present in cases where advantage was taken of the natural affection
or trust of someone who was not weak-minded or facile. To fill this gap,39
Scots law, like South African law subsequently, drew on the English law of
undue influence and recognised it as a new and independent ground for
40
attacking the validity of a contract. Curiously though, neither mixed system
makes use of the presumptions which play such an important role in cases of
undue influence in the Common Law.
Upon returning to PECL, it becomes apparent that in situations which do
not qualify as threats under Article 4:108 PECL or as fraud under Article
4:107 PECL, recourse can be had to Article 4:109 PECL in cases of taking
advantage of situations of dependence and trust, i.e. situations comparable to
those covered by undue influence. However, Article 4:109 PECL also covers
circumstances that cannot easily be brought home under undue influence in
these systems – for example, if a party at the time of the conclusion of the
contract was in economic distress or had urgent needs, was improvident,
ignorant, inexperienced or lacking in bargaining skill. The first question can
therefore only partially be answered positively: Article 4:109 PECL has been
anticipated by the mixed systems, but only to the extent that it covers undue
influence.41
(3) Learning from Article 4:109 PECL: cases of weakness falling

outside undue influence
A second aim of the volume is to adopt the comparative yardstick to establish
whether the mixed systems and PECL can learn from each other’s experi-
ences. In the present context, a question of particular interest is how mixed
systems should deal with cases of weakness which are covered by Article
4:109 PECL, but do not fall under undue influence. Again some comparative
and historical background is useful, especially for determining what constructs
in the Civil and Common Law traditions are at play in this context.
38 See McBryde, Contract, paras 16–01 ff.

39 On “gap-filling” as a way to develop mixed legal systems, see J E du Plessis, “Common Law
influences on the law of contract and unjustified enrichment in some mixed legal systems” (2003)
78 Tulane LR 219 at 248.
40 As far as the actions of the wrongdoer are concerned, South African law requires unscrupulous
conduct, which Scots law does not, although it can be expected that such conduct would usually
be present.
41 See J du Plessis and R Zimmermann, “The relevance of reverence: undue influence Civilian style”
(2003) 10 Maastricht Journal of European and Comparative Law 345 at 346, 378.
(a) Article 4:109 PECL from a Civilian perspective: laesio enormis and usury
Some Continental European legal systems recognise that the substantive
disproportion between the values of performances may influence the validity
of a contract – in other words, they still subscribe to the modern equivalents
of the doctrine of laesio enormis. However, other systems, such as German
law, provide only relief if the conclusion of an excessively one-sided or unfair
contract was accompanied by certain procedural problems – most notably
taking advantage of certain types of weakness or vulnerability. This is also the
approach followed in Article 4:109 PECL. To understand this type of
approach better, it is helpful to examine the German experience more
closely. And to understand this experience the clock should be turned back to
the late nineteenth century,42 when drafting Commissions of the new German
Civil Code were engaged in serious deliberations as to whether a provision on
laesio enormis should be included in the code. They knew that there had been
unfortunate experiences with its application, especially with determining
when it may be renounced. The Commission then decided not to include
such provision – as Dawson has put it, “Germany’s protracted experience
with laesio enormis produced a profound disbelief in this arithmetical
43
standard of fairness”. But, as Dawson also pointed out:
The doctrine of laesio enormis was indeed condemned. What proved harder to
destroy was the central core of ideas which had there achieved inadequate
expression. Before the final publication of the German Civil Code these ideas
were unexpectedly to reappear in a new form but under a very old name. The idea
44
that was to be appropriated for the purpose was the idea of usury.
In 1880 German criminal law was reformed to combat some unpleasant

45
experiences with the abolition of usury rules. The reform initially only
prohibited loans at an excessive return, but in 1893 it was extended to cover
every type of transaction that served the same economic purpose. The penal
provisions of the legislation had a curious feature. Mere substantive excess
was not enough. The contract also had to be concluded as a result of certain
42 See generally Dawson (1937) 11 Tulane LR 345 at 370, 375–376; (1937) 12 Tulane LR 42 at 48 ff;
J P Dawson, “Unconscionable coercion: the German version” (1976) 89 Harvard LR 1041 at 1052
ff; K Luig, “Vertragsfreiheit und Äquivalenzprinzip im gemeinen Recht und im BGB.
Bemerkungen zur Vorgeschichte des § 138 II BGB”, in C Bergfeld (ed), Aspekte europäischer
Rechtsgeschichte, Festgabe für Helmut Coing zum 70. Geburtstag (Ius Commune Sonderhefte
17, Frankfurt/Main, 1982), 171; H-P Haferkamp, in Schmoeckel et al, Historisch-kritischer
Kommentar, vol 1 Allgemeiner Teil (2003), § 138, nn 12–13.
43 See Dawson (1937) 11 Tulane LR 345 at 375 f (referring to Motive, in Mugdan, Die gesammten
Materialien zum Bürgerlichen Gesetzbuch für das Deutsche Reich, vol 2 (1899), 321).
44 Dawson (1937) 11 Tulane LR 345 at 376.
45 See Luig, in Bergfeld, Aspekte europäischer Rechtsgeschichte, 182 ff.
types of weakness.46 It is from this approach that the Reichstag took its lead.
At the eleventh hour, after the drafting Commission had completed its work,
the centre and left wings of the Reichstag pushed for the introduction of
similar restrictions on usury (or Wucher) in the Civil Code. The new pro-
vision on Wucher was then latched on to the general prohibition in §138(1)
BGB of transactions that offend good morals (i.e. are gegen die gute Sitten).
The location of the new §138(2) BGB in the Code is significant: in essence, it
only deals with a concrete instance of transactions that offend good morals.
Today, after a reform in 1976, it reads as follows:
In particular, voidness attaches to a legal transaction, whereby one person through
exploitation of the distressed situation [Zwangslage], inexperience [Unerfahren-
heit], lack of the ability to form a sound judgment [Mangel an Urteilsvermögen] or
grave weakness of will [erhebliche Willensschwäche] of another, causes economic
advantages to be promised or granted to himself or to a third party in exchange for
a performance, and these advantages exceed the value of the performance to such
an extent that, under the circumstances, there is a striking disproportion between
47
them .
It did not take the German courts long to realise that §138(2) BGB did not
adequately take account of cases where a person was mentally weak without
being insane. The courts therefore expanded the illegality requirement of
§138(1) BGB to cover these cases that were analogous to those falling under
48
§138(2) BGB. In addition, §138(1) BGB could be made to cover situations
where disadvantageous contracts were concluded by economically inferior or
pressurised parties, or by parties who had been subjected to undue solicita-
49
tions. In this way German law could now also provide relief in situations
50
comparable to those covered by the Common Law of undue influence.
Nowadays a number of Continental codes contain provisions comparable
51
to §138(2) and the extensions to §138(1) BGB. For example, the drafters of
46 The inequality between performance and counterperformance had to be achieved through
“exploitation of the necessity [Notlage], thoughtlessness [Leichtsinn] or inexperience [Unerfahren-
heit] of the other party. See Dawson, (1937) 12 Tulane LR 42 at 48 ff; Zimmermann, Obligations,
175 f; Zimmermann, The New German Law of Obligations: Historical and Comparative Perspec-
tive (forthcoming henceforth Zimmermann, The New German Law of Obligations), ch 5, II.7.
47 See Zimmermann, Obligations, 176; Zweigert & Kötz, Comparative Law, 330; Dawson (1976) 89
Harvard LR 1041 at 1052. Before 1976, § 138 II BGB had defined the instances of weakness in
the way set out in note 46.
48 See Dawson (1937) 12 Tulane LR 41 at 64 f; Dawson (1976) 89 Harvard LR 1041 at 1061; on
“wucherähnliche Geschäfte”, see Rolf Sack, in J von Staudinger, Kommentar zum Bürgerlichen
Gesetzbuch (revised edition 2003), § 138 nn 228 ff.
49 See Dawson (1937) 12 Tulane LR 41 at 64–68; Zimmermann, The New German Law of
Obligations, ch 5, VI.1.b) and c).
50 Dawson (1937) 12 Tulane LR at 64; Hadjiani, 2002 Oxford University Comparative Law Forum,
VII, IX.
the New Dutch Civil Code have been directly inspired by the German § 138,
as well as the English law of undue influence, when they decided to adopt
abuse of circumstances, independently from threats and fraud, as a ground
for attacking the validity of a contract.52
From this short overview it should be apparent that from the perspective
of some Civilian systems, Article 4:109 PECL in terms of both its structure
and approach can be regarded as a modern manifestation of the earlier
prohibitions of usury, rather than laesio enormis.
(b) Article 4:109 PECL from a Common Law perspective: undue influence
and unconscionability
From the Comment and Notes to Article 4:109 PECL it is apparent that the
drafters were not only mindful of Continental positions in the law of lesion
53
and usury, but also of certain parallel developments in the Common Law.
These are undue influence, which we have already touched upon, and
54
unconscionability. To appreciate the relevance of unconscionability in the
present context, a historical perspective is again of value.
It was shown above that in the middle of the nineteenth century, the
relaxation of usury laws in Germany gave rise to abuses that had to be righted
by legislative reform. Significantly, after a long agitation, usury laws were at
that time also relaxed in Britain,55 only to give rise to similar problems.
Unconscionability, which was an established instrument for protecting weak
persons who concluded usurious transactions, then came into greater pro-
minence. Although it is rather difficult for an outsider to grasp its ambit, the
impression is that unconscionability protects persons, sometimes described
51 See PECL, vol 1, 264–265; see Article 3:44(4) BW; Articles 1447, 1448 of the Italian Codice
Civile; Articles 282–283 of the Portuguese Código Civil; Article 118 of the Luxembourg Code
Civil.
52 Article 3:44(4) PECL (“A person who knows or should know that another is being induced to
execute a juridical act as a result of special circumstances – such as state of necessity, dependency,
wantonness, abnormal mental condition or inexperience – and who promotes the creation of that
juridical act, although what he knows or ought to know should prevent him therefrom, commits
an abuse of circumstances”). As to its background, see C J van Zeben and J W du Pon (eds),
Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981), 203, 210; A S Hartkamp,
“Das neue niederländische Bürgerliche Gesetzbuch aus europäischer Sicht” (1993) 57 RabelsZ
664 at 673.
53 PECL, vol 1, 264 f.
54 Cf Treitel, Contract, 420 ff; Cartwright, Unequal Bargaining, 197 ff; J Beatson, Anson’s Law of
Contract, 28th edn (2002) (henceforth Beatson, Anson’s Law of Contract), 296–298.
55 See Alec Lobb (Garages) Ltd v Total Oil (Great Britain) Ltd [1983] 1 WLR 87 (henceforth Lobb v
Total Oil), 94; for the background to the repeal of these laws see P S Atiyah, The Rise and Fall of
Freedom of Contract (1979) (henceforth Atiyah, Rise and Fall of Freedom of Contract), 550–551.
as the “poor and ignorant”,56 who have been exploited and entered into
oppressive contracts.57 This is done by a presumption of impropriety, which
then has to be rebutted by the party seeking to enforce the contract.58
It should be noted that we again are not dealing with relief purely on the
basis that a contract is unfair in its substance or content.59 As in the case of
undue influence, or the modern German law of usury for that matter, it is a
combination of substantive and procedural requirements that have to be met
before relief can be provided.
(c) Article 4:109 PECL and the current position in mixed systems
From the above overview, it should be apparent that some Civil Law and
Common Law constructs give relief in situations of weakness which do not
fall under undue influence, duress or fraud. The fate of these and compar-
able constructs in the mixed systems will now be examined, starting with
laesio enormis.
Although Roman-Dutch law inherited the doctrine of laesio enormis from
post-classical Roman law, it was rejected in the Cape and Natal in the late
nineteenth century, at roughly the same time as undue influence was on the
rise. Subsequently laesio enormis was abolished by statute in the whole of
South Africa.60 This was done after the Appellate Division had severely criti-
cised the doctrine, branding it as “redolent of the cerebrina aequitas of Con-
stantinople and Berytus” and as “inherently arbitrary and preposterous”.61
Incidentally, to some it appeared rather odd that a system which could reject
laesio enormis could at the same time embrace undue influence.62 For
example, Professor J C de Wet of the Stellenbosch Law Faculty caustically
remarked that:
56 Apparently, these disabilities are nowadays interpreted more liberally (see Cresswell v Potter
[1978] 1 WLR 255; Watkin v Watson-Smith, The Times, 3 July 1986; Cartwright, Unequal
Bargaining, 202; K N Scott, “Evolving equity and the presumption of undue influence” (2002) 18
Journal of Contract Law 236 at 241 n 33; but cf also Beatson, Anson’s Law of Contract, 298.
Treitel refers to unfair advantage being taken “of a person who is poor, ignorant or weak-minded,
or is for some other reason in need of special protection” (Contract, 421, own emphasis).
57 It has been said that the contract has to be so oppressive that it “shocks the conscience of the
court” (Lobb v Total Oil; Scott (2002) 18 Journal of Contract Law 236 at 241).
58 See Treitel, Contract, 420.
59 On the general rejection in English law of providing relief purely on this basis, see S A Smith, “In
defence of substantive fairness” (1996) 112 LQR 138; but cf D Capper, “Undue influence and
unconscionability: a rationalisation” (1998) 114 LQR 479 at 501.
60 Section 25 of the General Law Amendment Act 32 of 1952.
61 Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A) at 862–863.
62 Preller v Jordaan 1956 (1) SA 483 (A), the locus classicus, which placed the final stamp of approval
on undue influence, was decided only four years after the abolition of laesio enormis.
in the light of the abolition of laesio enormis it is quite puzzling that the Appellate
Division pampers the doctrine of undue influence. The courts took off the
shepherd’s cloak of Justinian, or is it now Diocletian, and put on the cloak of
63
Father Christmas.
But, as we have seen, this comparison is rather unfair, since undue influence,
unlike laesio enormis, contains substantive as well as procedural require-
ments. Nowadays, it is clear in South African law that a contractual term
cannot be avoided merely because it substantively gives a party an “excessive
benefit”. A contractual term may of course be illegal if its content or purpose
is contrary to public policy, but this requirement is interpreted narrowly – in
essence, the impropriety of the transaction and the element of public harm
must be manifest.64 A term generally is not illegal merely because one party
obtains a benefit which is considered excessive. A contractual term would
also be illegal if it is contrary to statute, and in this regard there are a number
of statutory regulations, such as the limitations on usury by the prescription
65 66
of maximum interest rates and on certain terms in credit agreements.
Through applying the illegality test, the courts may protect weak parties, for
example, employees entering into restraint of trade agreements, or borrowers
who were required to provide security to the extent that they were virtually
67
enslaved by their creditors. But such protection is at best indirect, or a by-
product of the regulation of the substance of the contract.
So far as concerns giving more concrete protection to weak parties by
resorting to the notion of good faith, the South African Supreme Court of
Appeal is adopting a careful approach, and is especially wary of a free-floating
principle to which courts might resort whenever they feel that they do not
want to enforce a contract.68 It is not entirely surprising that the South African
Law Commission has suggested some rather bold legislative reforms. This has
taken the form of a potentially far-reaching Bill on the Control of Unreason-
ableness, Unconscionableness [sic] or Oppressiveness in Contracts or Terms.69
63 De Wet and Van Wyk, Kontraktereg, 53 and n 211 (translation JEduP).

64 See Botha (now Griessel) v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A); Sasfin v Beukes 1989 (1)
SA 1 (A).
65 Usury Act 73 of 1968; on earlier cases dealing with usury, see L F Van Huyssteen, Onbehoorlike
Beïnvloeding en Misbruik van Omstandighede in die Suid-Afrikaanse Verbintenisreg (1980)
(henceforth Van Huyssteen, Onbehoorlike Beïnvloeding), 119–121.
66 Credit Agreements Act 75 of 1980.
67 See Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A). On the possibility that unequal bargaining
positions may have a bearing on determining the reasonableness of a restraint in English law, see
Cartwright, Unequal Bargaining, 205.
68 Cf Brisley v Drotsky 2002 (4) SA 1 (SCA).
69 See South African Law Commission, Project 47 Report on Unreasonable Stipulations in
Contracts and the Rectification of Contracts (April 1998), Annexure A (213 ff).
This Bill inter alia provides that a court can strike down any contract or
contractual term if the way in which it has come about is “unreasonable,
unconscionable or oppressive”. The guidelines supposed to assist a court in
reaching its decision include lack of relative bargaining power (2(a)), and lack
of intelligibility (2(h)). However, at present the fate of the Bill is uncertain.
As far as Scots law is concerned, the position is not that different. Laesio
70
enormis had already been rejected in the seventeenth century by Stair. At
present, the mere fact that a contractual term is harsh still does not affect its
invalidity. It is only in a number of exceptional cases that, as Professor McBryde
has put it, there is “spasmodic control”; it relates to minors’ contracts, penalty
71
clauses, leonine partnerships, moneylending and irritancies. Nothing has come
of a proposal by the Scottish Law Commission more than twenty-five years
ago that a new ground for annulment of obligations styled “lesion” should be
introduced, which was defined in terms of taking unfair advantage of a person’s
72
weak personal or economic position. The idea was that this ground would
exist alongside error and threats, but replace facility and circumvention,
undue influence and extortion (in the sense of exploiting another’s necessity).
Under Scots law, contractual terms can also be invalid if found to be
contrary to public policy, or contra bonos mores. Statutory control is further
exercised over unfair contract terms,73 and certain credit agreements – more
specifically, section 137 of the Consumer Credit Act 1974 enables a court
which finds a credit bargain extortionate to reopen it so as to do justice
74
between the parties. Of interest in the present context is that in deter-
70 Stair, Institutions, 1.10.14 (“But the question is here, Whether in these contracts there be a moral
necessity to keep an exact equality, that whosoever ex post facto, shall be found to have made an
unequal bargain, the gainer ought to repair the loser. In this the Romans did not notice every
inequality, but that which was enorm, above the half of the just value; which our custom alloweth not”).
72 Defective Consent and Consequential Matters (Scot Law Com Memorandum No 42, 1978), vol
1, paras 1.56 ff, vol 2, paras 3.120 ff.
73 See the Unfair Contract Terms Act 1977 (c 50); Unfair Terms in Consumer Contracts Regulations
(SI 1999/2083), which came into effect on 1 Oct 1999; although these regulations appear to focus
on substantive unfairness, it has been argued that the regulations are not primarily concerned
with substantive fairness but with the prevention of unfair surprises and the absence of real choice
(Beatson, Anson’s Law of Contract, 305). The English and Scottish Law Commissions have
recently published a Report proposing a simpler law of unfair contract terms, by combining the
1977 Act and the 1999 Regulations and widening the control over non-negotiated terms in
business-to-business contracts to protect small businesses: see Report on Unfair Terms in
Contracts, Law Com No 292, Scot Law Com No 199 (2005).
74 Section 137. The provisions are under review. A Government Consumer Credit Bill, under which
the current ss 137–140 would have been repealed, with a new set of ss 140A–D introduced to
govern “unfair relationships” between debtors and creditors, fell in April 2005 when a General
Election was called before the Bill had completed its parliamentary course. The Bill was, how-
ever, reintroduced following the election.
mining whether a credit bargain is extortionate, section 138 of the 1974 Act
provides that regard shall be had to, inter alia, the prevailing interest rates,
the debtor’s age, experience, business capacity, state of health and extent to
which he was under financial pressure, and his relationship to the creditor.75
It should be apparent that, in the limited context of credit bargains, we are
dealing with a set of circumstances that bear some resemblance to situations
covered by Article 4:109 PECL. But crucially, section 138 only applies to
credit bargains and not to contractual bargains in general.
Finally, Scottish courts, under English influence, have recognised that
good faith can play a prominent role when considering whether parties
should be made to bear the consequences of improperly obtained consent if
they do not take at least some steps to protect their contracting partners. I
will return to this matter when three-party issues are considered in the
context of Article 4:111 PECL below.
(d) Article 4:109 PECL and the future development of mixed legal systems
The overview above shows that mixed systems were progressive by adopting
undue influence, but that they were also somewhat conservative by not
providing relief in other cases of weakness, such as necessity, improvidence,
ignorance or inexperience. Two questions now arise. The first is whether
Scots and South African law should also provide relief in these cases and the
second, on the assumption that the first question is answered positively, is
whether there are suitable instruments with which to promote this end.
1. As far as the first question is concerned, it is simply not clear why taking
advantage of a person’s economic distress, urgent needs, improvidence,
ignorance, inexperience or inability to bargain is qualitatively so different
from the protected case of taking advantage of another’s trust and confidence.
These are all instances of taking advantage of weakness or vulnerability that
may not have been created by the party seeking to enforce the contract, but
are now consciously used to conclude a disadvantageous contract.
It is also not clear why the fact that the exploitation relates to one type of
contract, rather than another, should necessarily influence whether relief is
76
to be granted. For example, why should protection be afforded to weak
parties who conclude extortionate credit bargains due to inexperience and
financial pressure under section 138 of the Consumer Credit Act, but not to
75 Section 138.
76 But cf J Cartwright, ”Taking stock of O’Brien” (1999) 7 RLR 1 at 15, on the need for taking the
special context of suretyship into account when determining whether third parties should bear
the consequences of vitiated consent.
parties who suffer similar weaknesses and then conclude other transactions
that are equally extortionate? It will be recalled that this type of anomaly was
removed when the reformers of German law more than a century ago
introduced §138 of the new Civil Code. This provision broadened the scope
of “usury” (and incidentally by so doing reverted to its medieval meaning)77 to
include a variety of substantively disadvantageous transactions concluded as
a result of certain types of weakness. This is also the approach of Article 4:109
PECL, which applies to contracts in general, without any specific regimes for
sales, loans, providing services, suretyship contracts, and so forth.
2. Once it is accepted that an argument can be made for broadening the
scope of protection, the second question arises of how this can best be
achieved. One possibility is, of course, to introduce broad legislative provisions,
such as Article 4:109 PECL. However, as indicated above, the legislative
route has thus far not been very promising. This naturally shifts the focus to
judicial development of institutions that might either be transplanted from
other jurisdictions, or already form part of the existing non-statutory law.
Here a number of vehicles for change can be considered.
It is not necessary to deal at length with the vehicle of unconscionability.
There are at least two rather serious obstacles in the way of transplanting it
into mixed jurisdictions. The first is that the climate in mixed systems is at
present not conducive for such a wholesale reception. In the nineteenth and
early twentieth centuries, judges were rather free to incorporate features of
78
the Common Law into the existing law. Nowadays, the judiciaries of the
mixed systems, although certainly not hostile to the comparative method, are
79
more conscious of developing domestic law.
The second obstacle relates to the track record of the doctrine itself. It has
80
not only been applied rarely, but has given rise to a remarkable divergence
in views on its relationship with undue influence – especially on the extent to
which unconscionability and undue influence are “plaintiff”- or “defendant”-
81
based, and whether the one should be subsumed under the other. There is
77 See Atiyah, Rise and Fall of Freedom of Contract, 65.

78 Even then, use was not made of the opportunity: see Taylor v Hoddard (1886) 2 SAR 78; Van
Huyssteen, Onbehoorlike Beïnvloeding, 120.
79 See Section D below on how in Smith v Bank of Scotland 1997 SC (HL) 111 the House of Lords
resorted to the principle of good faith to impose duties on creditors to warn cautioners, with a
view to achieving an outcome similar to that reached in the English case of Barclays Bank plc v
O’Brien [1994] 1 AC 180 through recourse to constructive notice.
80 It is not clear why this is so (cf Capper (1998) 114 LQR 479; but cf Lubbe & Murray, Contract, 389
on the general inability of weak parties to conduct litigation).
81 The positions are summarised in Capper (1998) 114 LQR 479. Some have argued strongly in
favour of distinguishing between undue influence and unconscionability, on the basis that the
every reason to believe that if mixed systems were ever to receive the
Common Law doctrine of “unconscionability”, similar demarcation problems
would arise.
The second possible vehicle for change is the law of illegality. It has been
shown that the German codification rejected laesio enormis, but subsumed
“usury” and related cases where a substantively disadvantageous contract was
concluded due to the exploitation of specific forms of weakness under § 138
BGB, which requires that a transaction should not be contrary to public morals.
Given that mixed systems have jettisoned laesio enormis and further have
a very limited, statutory conception of usury, it can be asked whether they
may use the legality requirement to provide relief in these other cases of
weakness. Again, the answer is that the prospects for such a development
seem limited. Apart from the obvious fact that German law achieved this
outcome through some rather bold legislation, illegality in the mixed systems
in any event generally relates to the substance or content of the contract, and
82
not to the manner in which it was concluded. It is of course true that by
finding that the substance or purpose of a contract is contrary to public policy,
protection can be afforded to an exploited weak party. But, as indicated above,
such protection is essentially a by-product of controlling of the substance of
the contract.
This brings us to the third possible vehicle for change, namely the law of
undue influence. Certain features make this a more appealing alternative83
than the previous two. Unlike unconscionability, it nowadays is firmly
former is “plaintiff”-sided, and requires impaired autonomy or consent, rather than improper
exploitation by the defendant (cf P Birks & N-Y Chin, “On the nature of undue influence”, in J
Beatson & D Friedmann (eds), Good Faith and Fault in Contract (1995), 57; also see P Birks,
“Undue influence as wrongful exploitation” (2004) 120 LQR 34, drawing on Hammond v Osborn
[2002] EWCA Civ 885; but see Scott (2002) 18 Journal of Contract Law 236 at 239 on the
negative implications of Etridge for this view). Others have argued that undue influence (see
Capper (1998) 114 LQR 479), or even undue influence and economic duress (A Phang, “Undue
influence methodology, sources and linkages” [1995] Journal of Business Law 552) can be
subsumed under a general doctrine of unconscionability. Apparently, the broader scope given to
unconscionability in Australia has given rise to a decrease in the significance of undue influence.
For demarcation problems see further M Chen-Wishart’s analysis of Credit Lyonnais Bank
Nederland NV v Burch [1997] 1 All ER 144 (“The O’Brien principle and substantive unfairness”
(1997) 56 Cambridge LJ 60).
82 See Barnard v Barnard 2000 (3) SA 741 (C) at 753–754; Van Huyssteen, Onbehoorlike
Beïnvloeding, 133–134. But procedural problems are not irrelevant – see Afrox Healthcare Bpk v
Strydom 2002 (6) SA 21 (A) at para [12] on the possibility that inequality of bargaining power can
be a factor in determining whether an agreement is contrary to the public interest (also see
Christie, Contract, 416).
83 On such a facilitative function of undue influence, see Van Huyssteen, Onbehoorlike
Beïnvloeding, 126–141.
established in mixed legal systems, even though it is of Common Law origin.

And unlike illegality, it also incorporates the key procedural elements of
weakness and advantage-taking. What would be required is the analogous
extension of the abuse of relationships of influence or dependence to taking
advantage of analogous situations of weakness. In the Scottish context, in
particular, such a development could accommodate facility and circum-
vention, which seems to lead a rather idiosyncratic life as an off-shoot of
fraud. Perhaps “undue advantage taking”, or the Dutch label of “abuse of
circumstances” would better describe these cases. In this context it is also of
interest that, as indicated above, some English lawyers have proposed a merger
84
of undue influence and unconscionability, or at least have begun to argue
that there may be practical benefits associated with identifying a principle
85
underlying them. More specifically, it is appreciated that such a principle
may guide the development of existing categories by indicating their under-
lying function and purpose, and therefore promote, rather than undermine,
86
legal certainty.
From the perspective of an outsider, it is of particular interest that the
requirements of relational inequality, unconscionable conduct, and trans-
actional imbalance have been identified as cornerstones of a possible future
unified law of undue influence and unconscionability. This type of approach
bears a more than superficial resemblance to that of Article 4:109 PECL,
which contains the elements of weakness of the one party in relation to the
other, and taking advantage in a grossly unfair manner, or taking an excessive
benefit. There seems to be no reason why mixed systems cannot also be
87
guided by such underlying principles when developing the existing law.
Developing such a broader ground of undue influence would of course
not be without its difficulties. More specifically, it will have to be made clear
how the procedural and substantive components of such an extended notion
of undue influence have to be balanced. Unfortunately, it is rather difficult to
obtain clear guidance from Article 4:109 PECL in this respect. This provision

85 See e.g. Cartwright, Unequal Bargaining, 220; Beatson, Anson’s Law of Contract, 298–299; but cf
Treitel, Contract, 422 at n 21.
86 See Capper (1998) 114 LQR 503; S M Waddams “Unconscionability in contracts” (1976) 39
Modern LR 369.
87 On the absence of guiding principles, see also McBryde, Contract, para 17–22; Lubbe & Murray,
Contract, 388. Applying such principles would, e.g., explain why in a case like Lombard v Pongola
Sugar Milling Co Ltd 1963 (4) SA 860 (A) the contract had to be enforced: the mere existence of
inequality of bargaining power between the farmer and the company is not sufficient; the
company’s conduct as well as the extent to which the farmer was disadvantaged also have to be
weighed up before it can be determined that there is no liability.
differs from the approach of a number of Continental codes because it does

not require an excessive benefit. A victim would also be assisted if advantage
were to be taken of his situation in a way that was “grossly unfair”.
But when and how should this test of taking a “grossly unfair” advantage be
applied? This challenge is also faced by Dutch law, which provides relief in
cases of “abuse of circumstances”, without requiring excessive benefit.88 This
approach was already followed prior to the new code – the locus classicus is
89
Van Elmbt v Feierabend. There it was held that a contract of sale of an aged
widow’s house to her selfish adviser was void because it had been concluded
while she was very dependent on him, in financial and mental distress, and
the adviser knew that she wanted to keep the house at all costs. It was not
90
found that the transaction objectively had to be financially disadvantageous.
I must confess, though, that it is not at all easy to discern from this case what
exactly the circumstances were that warranted providing relief to the widow.
Although this is only a tentative suggestion, it does seem as if a lesson can
be learnt here from English law. If I understand it correctly, the element of
disadvantage is less important when dealing with undue influence than with
unconscionability, where it is required that the transaction must “shock the
conscience of the court”.91 One is drawn to the conclusion that English law
appreciates that the type and degree of procedural impropriety affects the
extent to which substantive disadvantage is required. This conclusion could
be of value when applying Article 4:109 PECL, as well as any extended notion
of undue influence in the mixed systems. It shows that even though it may be
desirable to provide relief by extending the category of cases of weakness,
there may still be a need to adopt a nuanced approach when determining the
extent to which substantive detriment should be required.
A second and final difficulty relates to establishing the boundaries between
such an extended notion of undue influence on the one hand, and force and
fear or duress on the other. It will be recalled that at the outset mention was
made of this link. Examples of at least a partial conflation of duress and undue
influence are the notion of “coercion” developed by the American moral
88 See the comparison and evaluation of Article 4:109 PECL by M M van Rossum, in Busch et al,
PECL and Dutch Law, 213; Comment E read with Note 5 to PECL, vol 1, 265.
89 HR 29 May 1964, NJ 1965, 104; further see HR 27 March 1992, NJ 1992, 377.
90 According to the Hoge Raad, abuse of circumstances can arise if making use by one party of
circumstances in which the other party finds himself has led the other party to conclude an
agreement which, if he had not been in such circumstances, he would not have concluded in view
of detriment associated with it for him. Objective detriment is not required.
91 See Etridge (No 2) [2001] 3 WLR 1021 at 1032; Scott (2002) 18 Journal of Contract Law 236 at
242.
92 Alan Wertheimer, Coercion (1987).
philosopher Wertheimer,92 as well as, to a certain extent, the doctrine of in-

equality of bargaining power created by Lord Denning.93 However, as Professor
Honoré has pointed out in a review of Wertheimer’s book, a problem with
this very broad notion of coercion is that there may be sound reasons to
differentiate between these categories. The question whether the victim has
a reasonable alternative traditionally is only asked in the context of duress,
94
and is not really relevant in the defective capacity cases. And finally, it may
well be that a lesser degree of harm should be required in the duress cases,
compared to undue influence. Both these distinctions are borne out by PECL.
D. ARTICLE 4:111 PECL: THIRD PERSONS
Determining the extent to which third persons may be made to bear the
consequences of the type of defects of consent under review is a highly
95
complex matter. The focus here will only be on Article 4:111(2)(e) PECL.
This provision relates to a fact pattern which has given rise to some of the
most heated debates in modern contract doctrine – that of one party pro-
viding security for the debts of another closely related party (usually a spouse)
in favour of a third party (usually a financial institution). This fact pattern,
which due to the inventiveness of some Australian feminists has come to be
described as “sexually transmitted debt”,96 has received particular attention in
Scots law. I will therefore only focus on the development in that jurisdiction.97
93 Lloyds Bank Ltd v Bundy [1975] QB 326.

94 See A M Honoré, “A theory of coercion” (1999) 10 Oxford JLS 94 at 99; also cf Halson (1991) 107
LQR 649 at 658–659, who states that the early development of undue influence in equity “was not
haunted by the spectre of the constant man”.
95 For more general comment to Article 4:111 PECL, see J Hijma, in Busch et al, PECL and Dutch
Law, 218–220. The effect of duress emanating from a third person who is not a party to the
contract or an agent is disputed in the two systems, but the favoured view seems to be that the
validity of the contract can be challenged (see Trustee Savings Bank v Balloch 1983 SLT 240;
Broodryk v Smuts NO 1942 TPD 47 at 52; but cf Lubbe & Murray, Contract, 365, who argue for
uniformity with the position under misrepresentation, where the contract would be valid). But it
has not been made clear to what extent the party seeking to enforce the contract either has to
know, or reasonably is supposed to know, about the duress.
96 See G Gretton, “Sexually transmitted debt” 1999 TSAR 419.
97 In South African law it is settled that where the victim (A) confers a benefit under a contract with
a person exerting undue influence (B), and B in turn confers the benefit on a bona fide third party
(C), C obtains valid title. However, Article 4:111(2)(e) PECL covers the situation where the party
who acts improperly (B) leads the victim (A) to contract with a party (C), who knew or ought to
have known of the relevant facts. Traditionally, it is said that in South African law, A would only
have a claim against C if C knew about the undue influence of B (see Christie, Contract, 361).
However, the minority judgment of Oliver JA in Eerste Nasionale Bank NO v Saayman van
Suidelike Afrika Bpk 1997 (4) SA 302 (SCA) lends itself to the interpretation that good faith
demands that A could have a claim against C even though C did not have such knowledge.
Traditionally, Scots law visited the consequences of undue influence on a

third party where there was proof that the third party had known of facts and
circumstances indicating that undue influence had in fact been exercised.98
However, in Smith v Bank of Scotland99 the House of Lords held that good
faith requires, in the surety example above, the third party bank to take steps
in the interest of the surety100 – more specifically, the bank has “to warn the
potential cautioner [surety] of the consequences of entering into the pro-
posed cautionary obligation and to advise him or her to take independent
101
advice”. Actual knowledge of undue influence is not a requirement for
such a duty to arise; to use the language of PECL, this duty would arise in
cases where one can say that the bank “ought to have known” of the relevant
facts. There is no doubt that this position was adopted to bring Scots law in
102
line with the English decision of Barclays Bank plc v O’Brien, where, by
recourse to the concept of notice, it was held that third parties such as banks
can be adversely affected if they have “constructive notice” of certain vitia-
ting circumstances. Since the concept of notice is based on equitable
principles, a different justification for this development had to be found in
Scots law. The House of Lords then followed the path closest to equity that is
available in Scots law, namely that of the need to display good faith in the
creation of contracts.103
It is clear, though, that Scottish courts are not going to follow the English
lead blindly – an approach in line with some prophetic suggestions made by
104
Professor Ewan McKendrick. Of particular concern in Scotland has been
the idea that banks should not merely warn and advise the potential surety to
take advice, but should “bring home” to that person the risks of the trans-
action. The detailed steps that creditors are supposed to take according to the
105
English case of Royal Bank of Scotland plc v Etridge (No 2) have been
described as “difficult to reconcile with the normal approach of Scots law to
106
questions of good faith”. It further seems as if the extension is also restric-
ted to contracts of caution, which traditionally impose specific duties on the
98 See the judgment of Lord Hope in Mumford v Bank of Scotland; Smith v Bank of Scotland 1996
SLT 392.
99 1997 SC (HL) 111.
100 1997 SC (HL) 111 at 118.
101 1997 SC (HL) 111 at 122.
102 [1994] 1 AC 180.
103 1997 SC (HL) 111 at 121.
104 E McKendrick, “The undue influence of English law?”, in Essays Wilson, 214 ff.
105 [2002] 2 AC 773.
106 Clydesdale Bank plc v Black 2002 SC 555 at para 31.
creditor – an approach which apparently has also found favour in Common

Law circles.107 It would therefore seem as if Scottish courts are intent on
developing their own, more conservative approach to the problem.108
Curiously, even though both mixed systems adopted the Common Law of
undue influence, they, like Article 4:109 PECL, do not make any use of
presumptions in three-party, or even two party situations.109 It is not clear
why this is so. In a recent paper, Reinhard Zimmermann and I have argued
that use of presumptions in this context is not at all unusual in the Civilian
110
tradition. It was already appreciated in the Middle Ages that the severe
problems of proof faced by persons who were in reverence or awe of another
and then subjected to improper influence or advantage-taking could be
alleviated by presumptions of fear or metus reverentialis. The mixed systems
therefore can hardly object to making use of presumptions on the basis that it
is incompatible with the Civilian heritage.
Furthermore, and this is also of interest when evaluating PECL, it is not
only the modern Common Law which makes use of presumptions, but also
modern Civilian systems such as German and Dutch law. Under German law,
if a suretyship agreement concluded by close relatives of the debtor has
unbearable financial consequences for the debtor, it is presumed that the
creditor has exploited the typical relationship between such parties in a
manner that can be regarded as contra bonos mores. The creditor would then
have to indicate that the suretyship is based on an autonomous decision of the
surety which has not been influenced by the emotional bond with the debtor
– for example, if the surety had a personal interest in the granting of the
111
loan. Ignorance of the surety being overstrained would also be a ground for
rebuttal, although the creditor would not be able to rely on this ground if he
fails to take certain steps to enquire about the value of the security, thereby
deliberately preventing knowledge of the surety’s inability to perform from
112
being obtained.
107 See J Cartwright (1999) 7 RLR 1 at 14 f, on limiting the O’Brien doctrine to the surety contract;
as to the background see G J Junor, “The dust settling: Smith v Bank of Scotland” 1999 JR 67.
108 See Du Plessis and McBryde, in Zimmermann, Visser & Reid, Mixed Legal Systems, 131.
109 See Mumford v Bank of Scotland; Smith v Bank of Scotland 1996 SLT 392; Miller v Miller 1965
(4) SA 458 (C).
110 Du Plessis & Zimmermann (2004) 10 Maastricht Journal of European and Comparative Law 345.
111 M Habersack, Münchener Kommentar zum Bürgerlichen Gesetzbuch, 4th edn, vol 5
(henceforth Habersack, Münchener Kommentar), vol 5, 4th edn (2004), § 765 rdnr 23–28; M
Habersack & R Zimmermann, “Legal change in a codified system: recent developments in
German suretyship law” (1999) 3 Edinburgh LR 272 at 282; for arguments in favour of the use
of presumptions in Dutch law, see A S Hartkamp, Verbintenissenrecht – deel II Algemene Leer
der Overeenkomsten 11th edn (2001), para 216a.
112 Habersack, Münchener Kommentar, § 765, n 25.
From the perspective of South African law, it is especially significant that

the greater protection of the surety in German law was a direct consequence
of a finding by the Federal Constitutional Court that when applying general
provisions of the Civil Code such as § 138 BGB, due attention must be paid
to the protection afforded by the Basic Law to the private autonomy of
individuals.113 In 1996 South Africa adopted a new Constitution114 which con-
tains a horizontally operative Bill of Rights. This Bill not only protects specific
115
rights but also, less directly, certain values, such as individual autonomy. It
may well be that effective protection of this value would ultimately require
116
adopting much more progressive measures than those recognised at present,
but without “unduly disturbing the existing doctrinal machinery or creating
117
wholesale legal uncertainty”. And in determining what amounts to effec-
tive protection, it would seem as if valuable guidance can be obtained from
the experiences of other jurisdictions with the application of presumptions,
as well as the imposition of duties to warn and advise, on third parties who
seek to enforce potentially onerous transactions. These are still early days,
but perhaps there is also a lesson here for those who are interested in refining
PECL, and especially in determining whether the failure of the bank to take
steps gives rise to an inference that it “ought to have known of the relevant
facts”, and thus should be liable under Article 4:111 PECL.
E. CONCLUSIONS
As indicated at the outset, one aim of this volume is to determine whether the
solutions found by the draftsmen of PECL have been anticipated in the two
mixed systems. As we have seen, one such instance is the reception of the
Common Law of undue influence to fill a gap between the Civil Law of force
and fear/duress and fraud. In this way mixed systems have reached an
outcome which is now at least partially also achieved by Article 4:109 PECL.
But mixed systems have also at times missed opportunities, which could have
resulted in them anticipating developments in PECL. They do not generally
provide relief in cases of what is called unconscionability under the Common
Law, whereas cases of necessity and ignorance are also brought home under
113 See M Habersack & R Zimmermann (1999) 3 Edinburgh LR 272 at 276 f.

114 Act 108 of 1996.
115 See judgment of Cameron JA in Brisley v Drotsky 2002 (4) SA 1 (SCA), para 94.
116 See G F Lubbe, “Taking fundamental rights seriously: The Bill of Rights and its implications for
the development of contract law” (2004) 121 SALJ 395 at 407 f.
117 (2004) 121 SALJ at 408.
Article 4:109 PECL. And although there does not seem to be a problem in
either of the mixed systems with recognising that threats of economic harm
can be unlawful,118 these systems have hardly made use of the opportunity to
give greater scope to the notion of unlawfulness by drawing on the Common
Law of economic duress. Such a development could have been an interesting
precursor to the assimilation in Article 4:108 PECL of the Civil Law and
Common Law of threats of physical as well as economic harm under the
broad requirement that the threat has to be wrongful.
A second aim of this volume is to evaluate the respective positions adopted
in the mixed systems compared to PECL. In this regard it was pointed out
that the overborne will theory has had an unfortunate effect on the Scots law
of force and fear, whereas Article 4:109 PECL avoids such problems by
(merely) requiring that a wrongful threat must have led or influenced a party
119
to conclude the contract. But lessons can also be learned from the mixed
systems which may assist in refining PECL. When dealing with three-party
problems under Article 4:111 PECL, the experiences of Scottish courts in
determining whether third parties should bear the consequences of undue
influence and related situations are particularly instructive. However, as we
have seen, it may well be that both the mixed systems and PECL could
benefit from reconsidering their refusal to assist weak parties by making use
of presumptions of impropriety.
118 See McBryde, Contract, para 17–04; Christie, Contract, 353–354; Du Plessis, Compulsion and
Restitution, 68 ff, 102, 131 ff. The statement in the Notes to Article 4:108 that “economic duress
has not yet been recognised in … Scots law” (see PECL, vol 1, 260) is therefore incorrect,
inasmuch as it suggests that Scots law does not recognise that threats of economic harm can give
rise to force and fear.
119 Also see PECL, vol 1, 259–260 (Comment D, Note 1 to Article 4:108 PECL).
7 Interpretation
Eric Clive
A. INTRODUCTION
B. THE PECL RULES: CIVIL LAW, COMMON LAW OR MIXED?
(1) The PECL rules
(2) Civilian influences?
(3) English influences?
(4) The American Restatement
(5) United Nations Convention on the International Sale of Goods
(6) Preliminary conclusion
(7) Further considerations
(a) Is English law really so different?
(b) Are Civilian systems so similar to PECL and each other?
(8) Conclusion on PECL as a mixed system
C. PECL RULES IN RELATION TO SCOTTISH AND SOUTH
AFRICAN LAW
(1) Introduction
(2) General impressions
(3) Must there be ambiguity before extrinsic evidence is admissible?
(4) Negotiations
(5) Subsequent conduct
D. ASSESSMENT OF PECL RULES
(1) Considerations which have to be taken into account
(2) Important policy choices
(a) Scope
(b) Rules of law or rules of evidence?
(c) One-step or two-step process?
(d) One rule for all contracts or different rules for different types?
(e) Subjective or objective starting point?
(3) Main PECL rules assessed
(a) Rule in Article 5:101(1) PECL
(b) Rule in Article 5:101(2) PECL
(c) Rule in Article 5:101(3) PECL
(d) Rules in Article 5:102 PECL
(e) Other rules
(f) Some criticisms
176
interpretation 177
A. INTRODUCTION
Given the statement in the Introduction to PECL to the effect that one of the
benefits offered by them “is to provide a bridge between the civil law and the
1
common law” it is of some interest, particularly for those from so-called
“mixed systems” like Scotland and South Africa, to try to detect major
influences on parts of PECL. Are the PECL rules predominantly Civil Law,
predominantly Common Law, or “mixed”? I will therefore consider the
PECL rules on interpretation from this point of view before turning to what
are for me more interesting questions – namely whether the PECL rules on
interpretation are acceptable rules, and how they compare with the rules in
Scottish and South African law.
B. THE PECL RULES: CIVIL LAW, COMMON LAW OR MIXED?
(1) The PECL rules

The PECL rules for the interpretation of contracts are to be found in
Chapter 5. The more general rules are in Articles 5:101 and 5:107 PECL.
Article 5:101 provides that
(1) A contract is to be interpreted according to the common intention of
the parties even if this differs from the literal meaning of the words.
(2) If it is established that one party intended the contract to have a
particular meaning, and at the time of the conclusion of the contract
the other party could not have been unaware of the first party’s
intention, the contract is to be interpreted in the way intended by the
first party.
(3) If an intention cannot be established according to (1) or (2), the
contract is to be interpreted according to the meaning that reasonable
persons of the same kind as the parties would give to it in the same
circumstances.
Article 5:107 PECL provides that terms are to be interpreted in the light of
the whole contract in which they appear.
These general rules are supplemented by an Article spelling out what
2
circumstances are to be taken into account in interpreting a contract. These
include the preliminary negotiations; the conduct of the parties, even
subsequent to the conclusion of the contract; the nature and purpose of the
1 PECL, vol 1, xxiii.

contract; usages; and good faith and fair dealing. There are further Articles
containing some rules of preference for cases of doubt.3 These Articles
contain, for example, the contra proferentem rule, a rule giving preference to
individually negotiated terms over standard terms, a rule giving preference to
an interpretation which renders the terms of the contract lawful or effective,
and a rule giving a preference to the linguistic version in which the contract
was originally drawn up.
(2) Civilian influences?

There is no doubt that at first sight the PECL rules contain much that is
distinctly Civilian. The first rule in Article 5:101 PECL – that a contract is to
be interpreted according to the common intention of the parties even if this
differs from the literal meaning of the words – comes from Papinian, via
Pothier and the French Civil Code. Papinian says the intention of the parties
4
should be regarded rather than the mere words used. Pothier states that
“One should, in contracts, seek what was the common intention of the
5
parties, rather than the grammatical sense of the terms”. The French Civil
Code is almost identical: it provides in Article 1156 that “One should look for
the common intention of the contracting parties, rather than stop at the
literal meaning of the terms used”. The Italian Civil Code begins its
treatment of interpretation of contracts in the same way.6
In Article 5:102 PECL the open-ended nature of the circumstances which
can be taken into account also looks more Civilian than Common Law. This is
particularly true of the reference to the preliminary negotiations, to
subsequent conduct of the parties and to good faith and fair dealing. The
Italian Civil Code, for example, provides that in order to ascertain the
common intent of the parties “the general course of their behaviour,
including that subsequent to the conclusion of the contract”, is to be taken
7 8
into account. The Spanish Civil Code has a similar provision. The German
3 Articles 5:103–5:107 PECL.

4 D 50.16.219 (“In conventionibus contrahentium voluntatem potius quam verba spectari
placuit.”).
5 Robert Joseph Pothier, Traité des Obligations, in Oeuvres de Pothier (ed M Bugnet, 1861)
(henceforth Pothier, Traité des Obligations), 91 (“On doit, dans les conventions, rechercher
quelle a été la commune intention des parties contractantes, plutôt que le sens grammatical des
termes”).
6 Article 1362, first sentence: “That which was the common intention of the parties, not limited to
the literal meaning of the words, shall be sought in interpreting the contract” (from the translation
by Beltramo, Longo and Merryman, The Italian Civil Code (1969)).
7 Article 1362, second sentence.
8 Article 1282.
interpretation 179
BGB places particular stress on good faith and usage in the interpretation of
contracts.9 The Italian Civil Code also says that the contract is to be inter-
preted “in accordance with good faith”.10
Most of the later Articles on interpretation can also be seen to have
Civilian origins. Versions of the rule in Article 5:102 PECL on having regard
to the nature and purpose of the contract, the rule in Article 5:103 PECL on
interpretation contra proferentem, the rule in Article 5:105 PECL on
reference to the contract as a whole, and the rule in Article 5:106 PECL on
preferring a construction which renders the terms of a contract lawful or
11
effective can be found in the Digest. From there they made their way into
12 13 14
Pothier, the French Civil Code and several other civil codes.
In short, it is not difficult to find Civilian origins for most of the provisions
in Chapter 5 of PECL.
(3) English influences?

Article 5:101(2) PECL deals with the situation where one party intended the
contract to have a particular meaning and the other party could not have
been unaware of that intention. The contract is then interpreted in accord-
ance with that intention. The Notes to that provision in PECL state that this
rule is found in English law but not in a number of Civilian systems. Do we
have here a distinctively English influence? Probably not. It is true that
certain English decisions15 proceed on the basis of a similar approach. It is
also true that Chitty on Contracts advocates such a rule, in the context of a
discussion of mistake.16 But it could hardly be said to have been a well-
recognised rule in the English law on the interpretation of contracts at the
time when PECL was being formulated. It seems doubtful that the origin of
17
the rule was English law.
9 § 157.
10 Article 1366.
11 D 50.17.67; D 12.1.3; D 1.3.24; D 34.5.26 (27); and D 45.1.80.
12 Traité des Obligations, 92, 93, 96, 97.
13 Articles 1157, 1158, 1161, 1162.
14 Articles 1363, 1367, 1369, 1370 of the Italian Civil Code; Articles 1284, 1285, 1286, 1288 of the
Spanish Civil Code.
15 See e.g. Hartog v Colin & Shields [1939] 3 All ER 566 (hare skins offered at so much per pound.
Should have been clear to offeree that offeror meant so much per piece. Offeree nonetheless
accepted. Offeree not allowed to found on contract as written). Reference can also be made to the
House of Lords case of Sutton & Co v Ciceri (1890) 15 AC 144, (1890) 17 R(HL) 40 which,
although a Scottish case, did not proceed on any speciality of Scottish law.
16 29th edn (2004), paras 5-068–5-075.
17 The immediate origin appears to have been CISG but, in essence, the rule is an application of the
principle of good faith in the interpretation of contracts.
The Notes to the third paragraph of Article 5:101 PECL say that the
paragraph is similar to the basic rule in English law. That is true, but the rule
is not exclusively English and it seems doubtful whether English law was the
main origin of the rule.
In short, there is not much in Chapter 5 of PECL that has an immediately
recognisable English law origin.
(4) The American Restatement

There are certain similarities between the PECL rules on interpretation and
the rules in the American Law Institute’s Restatement of the law on
18
contracts. The Restatement has a rule to the effect that if the parties have
attached the same meaning to an agreement or term, it is interpreted in
19
accordance with that meaning. This is followed by a rule for the situation
where one party knew or had reason to know of a meaning attached by the
20
other. The similarity with the first two provisions of Article 5:101 PECL is
striking. The Restatement also has secondary rules rather similar to those in
21
PECL.
(5) United Nations Convention on the International Sale of Goods

The second two paragraphs of Article 5:101 PECL seem remarkably similar
to the first two paragraphs of Article 8 of the UN Convention on Contracts for
the International Sale of Goods. Article 8 provides that:
(1) statements made by and other conduct of a party are to be interpreted
according to his intent where the other party knew or could not have been
unaware what that intent was.
(2) If the preceding paragraph is not applicable, statements made by and other
conduct of a party are to be interpreted according to the understanding that a
reasonable person of the same kind as the other party would have had in the
same circumstances.
There are also some similarities between Article 5:102 PECL and Article 8(3)
of the Convention which provides that:
[Iin determining the intention of a party or the understanding a reasonable person
would have had, due consideration is to be given to all relevant circumstances of
the case including the negotiations, any practices which the parties have estab-
lished between themselves, usages and any subsequent conduct of the parties.
18 Restatement of the Law Second: Contracts 2d.

19 Article 201(1).
20 Article 201(2).
21 Articles 202 and 203. Compare, in particular, Article 203(d) with Article 5:104 PECL.
interpretation 181
(6) Preliminary conclusion

The preliminary conclusion is that Chapter 5 of PECL seems on the surface to
be predominantly Civilian with a substantial dash of international and American.
(7) Further considerations

If, however, we probe deeper we find a more complex picture.
(a) Is English law really so different?

First of all, English law is more like the PECL rules than might be thought.
One point worth noting is that many of the leading accounts and leading
cases on the interpretation of contracts in English law deal only with the
interpretation of formal written contracts. The rules on less formal contracts
are bound to be much more flexible and much more like the PECL rules. For
one thing, the distinction between the contract and the negotiations cannot
be so clearly drawn: in many informal contracts the contract has to be spelled
out of the negotiations.
Judges and textbook writers frequently refer to the primacy of the com-
mon intention of the parties. For example, in a recent House of Lords case
Lord Bingham said that “the object of the court is to give effect to what the
22
parties intended.” In a much older case the court said that in interpreting a
contract “greater regard is to be had to the intention of the parties than to any
particular words which they may have used in the expression of their
23
intent.” Chitty on Contracts states that “[t]he object of all construction of
the terms of a written agreement is to discover therefrom the intention of the
24
parties to the agreement.” It is true of course that the cases and writers
almost always go on to stress that the intention of the parties must be sought
by an objective interpretation of the terms used, read in the light of the whole
contract and the relevant surrounding circumstances, but the starting point is
often the intention of the parties.25 Moreover, the common intention of the
parties is what rules in matters of rectification of written contracts.26 And a
22 Bank of Credit and Commerce International v Ali [2002] 1 AC 251 at 259 (henceforth BCCI v
Ali).
23 Ford v Beech (1848) 11 QB 852 at 866.
24 29th edn (2004), para 12–042.
25 Often, but not always. For example, in what is now the classic and dominant statement of the rules
on the interpretation of contracts in English law, Lord Hoffmann does not mention the common
intention of the parties: see Investors Compensation Scheme v West Bromwich Building Society
[1998] 1 WLR 896 (henceforth Investors Compensation Scheme).
26 See Chitty on Contracts, 29th edn (2004), para 12–000.
common intention may give rise to an estoppel by convention, which would

personally bar the parties from founding on the objective meaning of the
relevant contract terms.27 Even more directly, the actual common intention
may be decisive as a simple matter of interpretation if the parties have
contracted on the basis that an agreed meaning is to be given to a particular
expression.28 So the first rule in Article 5:101 PECL is not so totally alien to
English law as might be supposed. It just expresses as a primary rule what in
English law would be regarded as an exception or as something to be used for
the purposes of special safety mechanisms.
We have already seen that the second paragraph of Article 5:101 PECL
(on the situation where one party knows of a special meaning attached by the
other) has its parallels in English law, even if they tend to be treated under
29
the heading of mistake. And the objective approach in the third paragraph
of Article 5:101 PECL causes no problems for English law. Indeed this
paragraph brings PECL and English law close together in those many cases
where the parties had no actual intentions at all on the meaning of a term.
So far as Article 5:102 PECL, on relevant circumstances, is concerned,
there has been a dramatic shift in English law in recent years. The traditional
approach of refusing to admit extrinsic evidence where the terms of a written
contract were unambiguous has been changed. The courts are now willing to
look at relevant surrounding circumstances even where there is no ambiguity
on the face of the contract. It is now generally recognised that meaning
depends on context and that the context of contractual terms includes not
only the whole of the document or documents in which they appear but also
the factual matrix in which the contract was entered into. In Mannai
Investment Co Ltd v Eagle Star Insurance in 1997 Lord Hoffmann said that
30
the old “restriction on the use of background had been quietly dropped”.
Apart from some special rules on prior negotiations and subjective declarations
of intention, commercial contracts would be construed in the light of all the
background which could reasonably have been expected to have been available
27 See Lord Hoffmann, “The intolerable wrestle with words and meaning” (1997) 114 SALJ 656.
28 The Karen Oltmann [1976] 2 Lloyd’s Rep 708 at 713. Note also Lord Hoffmann’s statements to
the effect that the background which can be taken into account in interpreting a contractual
document can include “proved common assumptions which were in fact quite mistaken”:
Investors Compensation Scheme (note 25) as modified in BCCI v Ali (note 22) at 269.
29 See e.g. Centrovincial Estates plc v Merchant Investors Assurance Ltd [1983] Com LR 158,
Chitty on Contracts, 29th edn (2004), paras 5-063, 5-068–5-075.
30 Mannai Investment Co Ltd v Eagle Star Insurance [1997] AC 749 (henceforth Mannai). This case
concerned a unilateral notice by a tenant which said 12 January when it should have said 13
January. The court held that any reasonable landlord would have realised that 13 January was
meant and interpreted the notice accordingly.
interpretation 183
to the parties in order to ascertain what would objectively have been under-
stood to have been their intention. He went on to say that:
[t]he fact that the words are capable of a literal application is no obstacle to
evidence which demonstrates what a reasonable person with knowledge of the
background would have understood the parties to mean, even if this compels one
to say that they used the wrong words.
Lord Bingham stated the modern English approach to the interpretation of

contracts very clearly in the case of Bank of Credit and Commerce Inter-
national v Ali in 2002:31
To ascertain the intention of the parties the court reads the terms of the contract
as a whole, giving the words used their ordinary natural meaning in the context of
the agreement, the parties’ relationship and all the relevant facts surrounding the
transaction so far as known to the parties.
Even in relation to prior negotiations there are exceptions to the exclusionary

approach. Negotiations can, for example, be considered in order to identify
the circumstances in which the contract was intended to apply, the factual
background known to the parties, or the genesis and objective aim of the
transaction.32 Even more importantly, negotiations and prior declarations of
intention can be taken into account in proceedings for rectification of the
terms of the contract. What this means is that the objection to admitting this
type of evidence turns out to be procedural rather than substantive. Evidence
of negotiations can be used by a two-step process even in those cases where it
cannot be used directly for interpretation.
So far as the secondary rules of interpretation are concerned, English law
is very similar to Articles 5:103 to 5:107 PECL. The fact that some of these
rules are obviously derived from Roman law does not mean that they are not
also now part of English law. English law is itself a mixed system.
So, it seems clear that although the PECL rules on interpretation do not
look very much like English law at first sight they are in fact not very different
in substance. The differences relate to matters of emphasis, evidence and
procedure. English law makes objective interpretation the primary rule
rather than the fall-back rule; it is unusually restrictive in relation to the
admissibility of evidence of prior negotiations and subsequent conduct; and,
in many situations, it requires some things which could be done by straight
interpretation under PECL to be done by special procedures or doctrines.
31 [2002] 1 AC 251 at 259.

32 Prenn v Simmonds [1971] 1 WLR 1381 (henceforth Prenn v Simmonds).
(b) Are Civilian systems so similar to PECL and each other?

If English law is more like PECL than might be supposed, it can also be said
that Civilian systems are less like PECL and indeed less like each other than
might be supposed. So far as the main rules of interpretation of contracts are
concerned, Roman law already reflected a tension between literal interpre-
tation and a more liberal contextual interpretation. The prevailing approach
33
varied over time, the general movement being from literal to liberal. In the
Digest we find both approaches represented. Papinian’s rather subjective
approach has already been mentioned but Paulus says that when there is no
ambiguity in the words used the question of the underlying intention of the
parties is irrelevant.34 Modern Civilian systems reflect the same tension. We
have seen that Article 1156 of the French Civil Code concentrates on the
common intention of the contracting parties, rather than the literal meaning
of the terms used. But the French courts have recognised and developed a
doctrine of “clear and precise terms”35 which is to the effect that if the terms
36
of a contract are unambiguous they must generally receive effect as written.
Some books on contract begin their treatment of interpretation with the
37
“clear and precise terms” rule rather than the code provision. The whole
approach to interpretation under current French doctrine is rather more
38
objective than the terms of the Civil Code would suggest. The position in
39
Italian law is similar. Some accounts of the Italian law as currently applied
read almost like accounts of English law. For example, one recent
introductory book on private law explains that the scope of interpretation is
not to enquire into “some inner will, or contemplation shared by both parties
but not expressly set forth” but is to enquire into the meaning of the words
used and other relevant facts.40 The Spanish Civil Code begins its rules on the
interpretation of contracts with the provision that if the terms of a contract
are clear and leave no doubt as to the intention of the contracting parties their
literal meaning is legally relevant.41 This is then qualified by a provision to the
33 See Zimmermann, Obligations, 634.

34 D 32.25.1 (“Cum in verbis nulla ambiguitas est, non debet admitti voluntatis quaestio”).
35 “Termes clairs et précis”.
36 Civ 19 janv 1942, DA 1942 Jurisprudence 107. However, a literal application of a “clear and
precise clause” can be rejected if it appears to be the result of a manifest error and against the
parties’ certain common intention. See Weill & Terré, Les Obligations, 4th edn (1986), para 365.
37 See e.g. J Schmidt-Szalewski, Droit des Contrats (1989) at 293.
38 See e.g. A Weill & F Terré, Les Obligations, 4th edn (1986), para 362.
39 Article 1362 Italian Civil Code; M Bianca, Dirritto Civile, vol III, Il Contratto, 2nd edn (2000), 420.
40 G Iudica & P Zatti, Language and Rules of Italian Private Law: An Introduction (trans J Funck)
(2003).
41 Article 1281.
interpretation 185
effect that if the words appear to be contrary to the evident intention of the
parties the latter prevails,42 but the order of treatment is interesting. Some
Civilian systems keep the legal rules on interpretation deliberately short on
the view that there is no point in stating fairly obvious and often contradictory
rules for the guidance of interpreters. In Germany the BGB says that
contracts are to be interpreted according to the requirements of good faith,
43
giving consideration to common usage. It says little else: it does not contain
the various canons of construction found in a number of other civil codes.
44
The new Dutch Civil Code is also very brief. The rules in these systems do
not look at all like the PECL rules.
(8) Conclusion on PECL as a mixed system

The PECL rules on the interpretation of contracts cannot reasonably be
categorised as Civilian or Common Law. Nor can they be categorised as a
simple mixture of the two. They are, however, mixed in the sense that, like all
sophisticated modern systems, they involve a mixture of approaches to the
main rules on interpretation. All such systems have to operate within a
narrow range of acceptable options and have to take the same considerations
into account. There are different ways of balancing conflicting considerations
and presenting the results. At any one time within any one system different
people will have different views on the best way. Prevailing opinions are likely
to change over time within any one system. Systems – even systems within
the same legal “family” – are likely to differ between themselves on the best
way of setting out the relevant rules. PECL represents one way. The
important question is not whether the PECL rules are mixed rules in any
traditional sense but whether they are good rules.
C. PECL RULES IN RELATION TO SCOTTISH AND

SOUTH AFRICAN LAW
(1) Introduction
What has been said in the last paragraph applies also to the Scottish and South
African laws on the interpretation of contracts. They have been exposed to
Roman law and English law influences but, more importantly, have had to
42 Article 1281, second sentence.

43 § 157 BGB.
44 See Article 3:35 BW.
balance conflicting policy considerations.45 Divisions of opinion, shifts of

opinion and tensions are apparent in both systems.46 It may be that adoption
of the PECL rules would provide a coherent and principled way out of some
current difficulties.
This is not the place for a full account of the relevant Scottish and South
African laws. Such accounts have been given elsewhere.47 For present pur-
poses some general impressions coupled with notes on points of particular
relevance to the PECL rules must suffice.
(2) General impressions

The current Scottish law on the interpretation of contracts is similar to
English law. Leading English cases and dicta on interpretation, including the
important dicta of Lord Hoffmann on the importance of interpreting words
48
in their context and in the light of relevant background circumstances, are
49
cited as highly persuasive authorities. As in English law, there is authority
for the view that if the parties contract on an agreed basis that a term is to
have an unusual meaning, that meaning will prevail over the ordinary
50
meaning of the term. There is also authority for the view that “an error of
expression will not necessarily prevent the court from giving effect to the true
intention of the parties”.51 And there is clear House of Lords authority for the
proposition that, if one party attaches a particular meaning to an expression
45 See C Lewis, “Interpretation of contracts” in Zimmermann & Visser, Southern Cross, 195–216; E
Clive, “Interpretation” in Reid & Zimmermann, History, vol 2, 47–71.
46 For a comparison of both systems which brings out clearly the shifts and differences of opinion
and the tensions, see L J Macgregor & C Lewis, “Interpretation of contract”, in Zimmermann,
Visser & Reid, Mixed Legal Systems, 66–93. For Scotland, see also MacQueen & Thomson,
Contract, 110–117 (which begins with the traditional objective approach and then proceeds to ask
about a “change in approach”) and the Scottish Law Commission’s Report on Interpretation in
Private Law (Scot Law Com No 160, 1997), which is critical of the extent to which the current law
is dominated by restrictive and complicated rules of evidence. For South Africa, see e.g.
Hutchison et al, Wille’s Principles, 461–462 (which sets out the traditional approach, based on the
exclusion of extrinsic evidence, and then observes that “in more recent times a trend of judicial
thought has emerged in favour of a more liberal approach to interpretation”). See also Lewis, in
Zimmermann & Visser, Southern Cross, 195–216.
47 In addition to the standard texts, see Macgregor & Lewis, in Zimmermann, Visser & Reid, Mixed
Legal Systems, 66–93; Lewis, in Zimmermann & Visser, Southern Cross, 195–216 and Clive, in
Reid & Zimmermann, History, 47–71. For Scottish law, see also Scot Law Com No 160 (1997).
48 Investors Compensation Scheme (note 25); Mannai.
49 See e.g. Bank of Scotland v Dunedin Property Investment Co 1998 SC 657 at 661, 670, 677
(henceforth BoS v Dunedin); Bank of Scotland v Junior 1999 SCLR 284; Lindsay Plant Ltd v
Norwest Group plc 2000 SC 93 at 98; Project Fishing International v CEPO Ltd 2002 SC 534 at
539 (henceforth Project Fishing).
50 See Hunter v Barron’s Trustees (1886) 13 R 883.
51 See Project Fishing (note 49).
interpretation 187
and the other knows this or could reasonably be expected to have known it,
and concludes the contract without saying anything on the point, that
meaning will prevail.52 In the absence of any such special features the
contract will be interpreted objectively. The basic Scottish rules are therefore
perfectly compatible with the PECL rules although, as in English law, the
emphasis often appears to be different. The recommendations of the Scottish
Law Commission on the substantive law on the above matters are also
perfectly compatible with the PECL rules although again the emphasis and
53
order of treatment are slightly different.
54
The current South African law also seems basically similar to English law.
55
English cases and dicta are occasionally cited, although to a lesser extent than
in Scotland. There is much more overt reference to Roman law than there is in
56
Scotland. The Civilian background is worn more openly on the sleeve. None-
theless the basic approach, after some difference of opinion, seems now to be
rather literal and objective. A recent statement is as follows (citations omitted).
According to our … law a policy of insurance must be construed like any other written
contract so as to give effect to the intention of the parties as expressed in the terms
of the policy, considered as a whole. The terms are to be understood in their plain,
ordinary and popular sense unless it is evident from the context that the parties
intended them to have a different meaning, or unless they have by known usage of
trade, or the like, acquired a peculiar sense distinct from their popular meaning. If
the ordinary sense of the words necessarily leads to some absurdity or to some
repugnance or inconsistency with the rest of the contract, then the court may
modify the words just so much as to avoid that absurdity or inconsistency but no
more. It must also be borne in mind that very few words bear a single meaning,
and the “ordinary” meaning of words appearing in a contract will necessarily
depend upon the context in which they are used, their interrelation and the nature
of the transaction as it appears from the entire contract. It is essential to have
regard to the context in which the word or phrase is used with its interrelation to
57
the contract as a whole, including the nature and purpose of the contract.
52 Sutton & Co v Ciceri (1890) 17 R (HL) 40, (1890) 15 AC 144.

53 See Scot Law Com No 160 (1997). The Commission begins with the rule on objective interpre-
tation but this is explained by the fact that its rules were framed for all juridical acts. The special
rules for contracts are presented as exceptions to the general rule of objective interpretation.
54 See Lewis, in Zimmermann & Visser, Southern Cross, 195–216.
55 For recent examples see e.g. the references to Smith v Hughes (1871) LR 6 QB 597 in HNR
Properties CC v Standard Bank of South Africa Ltd 2004 (4) SA 471 (SCA) and in the MV
Navigator 2004 (5) SA 10 (CPD). See also the brief reference to Investors Compensation Scheme
in Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA).
56 See e.g. the quotations from Justinian’s Digest in Hutchison et al, Wille’s Principles, 461–462.
57 Metcash Trading Ltd v Credit Guarantee Insurance Corporation of Africa Ltd Case No 96/2003,
heard 9 March 2004, delivered 25 March 2004. For other recent statements see Holland Life
Assurance Co Ltd v G J Van der Merwe NO Case No 569/2003, heard 19 Nov 2004, delivered 30
Nov 2004 and Aktiebolaget Hässle v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA), para 1. See also
Coopers & Lybrand v Bryant 1995 (3) SA 761 (A) at 768A–B (henceforth Coopers & Lybrand).
As in Scottish law, however, it seems that if the parties have attached a special
and unusual meaning to an expression in their contract that meaning will
prevail over the ordinary or dictionary meaning in a question between the
parties.
Even if a word has a plain and ordinary meaning, but the parties at the time the
contract was made both understood it to have a different meaning, the latter
58
meaning is binding on them though not on innocent third parties.
It would be surprising if this principle were not equally applicable to the

situation where one party attached a special meaning to an expression and
the other party knew this, or could reasonably be expected to have known it,
but said nothing.
In both systems rules restricting the admissibility of extrinsic evidence in
the interpretation of written contracts play an important role. In both systems
these restrictive rules are under challenge and seem to be in an unstable state.
(3) Must there be ambiguity before extrinsic evidence is admissible?

There is no such requirement in PECL. There probably was such a require-
ment in Scottish law, subject to exceptions, “ambiguity” being construed
59
widely so as to include uncertainty. The requirement was criticised by the
60
Scottish Law Commission as illogical, unnecessary and troublesome. It can
probably be assumed that there is now no such requirement. It seems that
the judicial abolition of it by the House of Lords in English cases in the late
61
1990s will be regarded as settling the law of Scotland on this point in the
62
direction recommended by the Scottish Law Commission.
The traditional view in South African law has also been that there has to be
ambiguity or sufficient uncertainty before extrinsic evidence will be admitted
58 Hutchison et al, Wille’s Principles, 464. Similar statements can be found in other books. See
Macgregor & Lewis, in Zimmermann, Visser & Reid, Mixed Legal Systems, 76.
59 For the confused and unsatisfactory state of the authorities on this point, see Macgregor & Lewis,
in Zimmermann, Visser & Reid, Mixed Legal Systems, 80. One of the most curious features of the
old law was the distinction between latent and patent ambiguities. This came in from English law
but is probably no longer part of that law. See Wickman Tools Ltd v Schuler AG [1974] AC 235 at
268 by Lord Simon of Glaisdale, and K Lewison, The Interpretation of Contracts, 3rd edn (2004),
para 8.02.
60 Scot Law Com No 160 (1997), paras 2.13–2.14. Illogical because meaning often depends on
background. Unnecessary because if there is an arguable dispute about the interpretation of an
expression it will usually be possible to find ambiguity. Troublesome because it merely adds
another stage to the dispute-solving process, a stage where the courts find it difficult to be
consistent.
61 Investors Compensation Scheme (note 25); Mannai (note 30).
62 See the cases cited in note 49 above.
interpretation 189
for the interpretation of a written contract.63 However, this view has been
under challenge for some time. It is now said that a court may always be
informed of the “background circumstances under which the contract was
concluded, such as the relationship in which the parties stood to one another
at the time of contracting.”64 A distinction is drawn between such “back-
ground circumstances” and “surrounding circumstances”, the latter being
65
admissible only in the event of ambiguity or sufficient uncertainty, but the
66
nature of the distinction is not entirely clear and the question has been
asked why evidence of relevant surrounding circumstances should not be
67
admissible in all cases. It remains to be seen whether, and if so how, the
obvious tension in this area of the law will be resolved.
(4) Negotiations
In Scottish law evidence of negotiations or prior communings is still, as a rule,
68
regarded as inadmissible in the interpretation of a written contract. There
seem to be several reasons for this continuing restriction. Each is plausible in
some cases but they do not justify a blanket exclusion for all cases. First, it is
69
said that reference to negotiations will be “unhelpful”. This is often true: it
will not help an interpreter to be told of abandoned negotiating positions
which cast no light on the meaning of expressions in the final agreement.
However, that is not always true: there are cases where reference to parti-
cular parts of the negotiations can elucidate the meaning which both parties
attached, or must have attached, to a particular expression.70 Secondly, it may
be said that in drawing up a formal written contract the parties must have
intended the wording of that contract to supersede anything said in the
negotiations. That will often be true, but not always. Parties may not include
63 See Hutchison et al, Wille’s Principles, 461–462 and, for a more recent statement, Rane
Investments Trust v Commissioner, South African Revenue Service 2003 (6) SA 332 (SCA) at 346.
64 Hutchison et al, Wille’s Principles, 462.
65 See HNR Properties CC v Standard Bank of South Africa Ltd 2004 (4) SA 471 (SCA) at 478 –
court can look at “background circumstances or, in the event of ambiguity, surrounding
circumstances”.
66 Contrast the statements in Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A) with those in
Coopers & Lybrand (note 57) at 768A-B. And see Macgregor & Lewis, in Zimmermann, Visser &
Reid, Mixed Legal Systems, 82.
67 See Cinema City (Pty) Ltd v Morgenstern Family Estates (Pty) Ltd 1980 (1) SA 796 (AD) at 804
per Jansen JA. See also Hutchison et al, Wille’s Principles, 462 and Lewis, in Zimmermann &
Visser, Southern Cross,195 -216.
68 BoS v Dunedin (note 49) at 661.
69 Prenn v Simmonds (note 32).
70 A point made in S C Smith, “Making sense of contracts” 1999 SLT (News) 307 at 311.
everything of relevance from the negotiations in their final written contract:

they may not have intended to supersede the excluded material: they may
simply not have realised that it would turn out to be important. Thirdly, it may
be said that the exclusion of reference to negotiations saves expense. That
will often be true, but not always. If evidence of surrounding circumstances is
admissible anyway, it is not clear that expense will always be saved by
excluding evidence of negotiations. Sometimes reference to the negotiations
would provide a clear and direct answer to the question in dispute. And
justice and party autonomy are relevant as well as expense. If the parties just
wanted any decision they could toss a coin. Fourthly, it may be said that
allowing evidence of negotiations is likely to be unfair to third parties, who
have no knowledge of what went on during negotiations. That will occasion-
ally be true, but not often. There are many cases where the dispute is only
between the parties to the contract. The protection of third parties is a
separate issue and can be otherwise accommodated. This fourth argument
also goes too far. It would suggest that in a question with third parties no
surrounding circumstances at all should be considered unless they could
have been known to a hypothetical third party.
Not surprisingly, it is recognised in the existing Scottish law that there are
exceptions to the rule excluding evidence of prior communings. Such
evidence can be used if the parties themselves refer to the negotiations to
supplement the terms of the contract.71 It can be used to identify the subject-
72
matter of the contract. And, significantly, it can be used to prove the state of
73
knowledge of the parties at the time of contracting. This last exception
suggests that the rule excluding negotiations cannot survive. It makes no
sense to allow reference to prior communings to show that the parties knew
that one of them was planning to incur costs of a certain type but not to allow
such reference to show that the parties had agreed in the course of the
negotiations that the expression would cover costs of that type. It is worth
mentioning also that negotiations can be referred to in order to demonstrate
that the parties had deliberately rejected a solution which would have had the
74
same effect as one possible meaning of an expression in their contract. This
too casts doubt on the survivability of the rule excluding evidence of negoti-
ations. If negotiations can be used to prove a negative common intention as to
the meaning of an expression why should they not be used to prove a positive
71 See e.g. Bovis Construction Ltd v Whatlings Construction Ltd 1994 SLT 865.
72 See e.g. Houldsworth v Gordon Cumming 1910 SC (HL) 49.
73 BoS v Dunedin (note 49).
74 See Hunter v Livingston Development Corporation 1986 SC (HL) 31.
interpretation 191
common intention?75 It is obvious too that the rule excluding evidence of

negotiations has no application in those cases where the contract has to be
spelled out of the negotiations.
What seems clear in the current state of Scottish law is that, in practice,
evidence of negotiations is much more widely admitted than it used to be.76
In its report on Interpretation in Private Law the Scottish Law Com-
mission recommended that evidence of negotiations should continue to be
inadmissible for the purpose of interpreting a contract objectively – i.e. in any
case where there was no argument that the parties or one of them had
77
attached a special meaning to an expression. However, the Commission did
not rule out the use of negotiations where there was a question as to whether
the parties (or one of them with the actual or constructive knowledge of the
78
other) had attached a special meaning to an expression. The Commission’s
recommendation was thus half-way between the existing Scottish (and English)
approach and the PECL approach. It would have been an improvement on
the existing law. It is arguable, however, that the Commission did not go far
enough in allowing evidence of negotiations. As between the parties to a
contract, reference to negotiations may sometimes be helpful for the purpose
of arriving at an objective determination of a reasonable or commercially
sensible meaning even in a case where neither party claims that any special
meaning was attached to an expression. Indeed it can be seen with hindsight
that the Commission’s recommendation is narrower in some respects than
the existing law, where negotiations can be referred to in order to show the
79
state of knowledge of the parties. The PECL solution seems preferable
South African law appears to be more flexible than the existing Scottish
law on the use of negotiations. There is authority for saying that if there is
sufficient ambiguity or uncertainty to allow in evidence of “surrounding
80
circumstances” then evidence of negotiations and correspondence between
81
the parties will be admissible as part of those circumstances. The policy
considerations are the same as in relation to Scotland.
75 This point is also made in D W McLauchlan “Common assumptions and contract interpretation”
(1997) 113 LQR 237 with reference to the Australian case of Codelfa Construction Pty Ltd v State
Rail Authority of New South Wales (1982) 149 CLR 337 where it was held to be permissible to
allow evidence that the “parties had united in rejecting” a particular meaning.
76 See e.g. City Wall Properties (Scotland) Ltd v Pearl Assurance plc 2004 SC 214 at 225.
77 Paras 2.19–2.22, 8.11.
78 Paras 3.19, 8.12.
79 BoS v Dunedin (note 49).
80 As opposed to “background circumstances”. See above, text accompanying note ??.
81 Coopers & Lybrand (note 57) at 768A–B. And see Macgregor & Lewis, in Zimmermann, Visser
& Reid, Mixed Legal Systems, 83–85.
(5) Subsequent conduct

There is a line of Scottish authority which clearly allowed evidence of
subsequent conduct to be admitted to establish what must have been, at the
time of contracting, the common intention of the parties as to the meaning of
an expression in their contract.82 These cases have never been expressly
overruled but it seems that in practice Scottish judges now tend to follow
statements in English House of Lords decisions83 to the effect that reference
to subsequent conduct is inadmissible for the purposes of interpreting a
contract.84 Whether this change of approach is wise is open to question.
Consider the facts of an old Scottish case. The parties had entered into a
formal contract for the lease of land. The period of the lease was to begin and
end at Whitsunday. At the end of the lease the question arose as to what was
meant by that term. The normal meaning would have been 15 May. The
85
tenant argued that the parties had used the term to mean 26 May. It was
proved that the landlord had given, and the tenant had taken, possession on
26 May. The court held, unanimously and without any apparent difficulty,
that this subsequent conduct established that the parties had used Whit-
sunday to mean 26 May. Lord Young said:
[I]t is proved to demonstration what the parties did mean … for the landlord gave,
and the tenant took, possession of the subjects let upon 26th May 1866, thereby
shewing clearly what they meant by the term of Whitsunday.86
It is difficult to believe that the result would have been better if evidence of
87
the parties’ subsequent conduct had been held inadmissible.
South African law also appears to be rather less restrictive than English
law in relation to subsequent conduct. The court can have regard to post-
contractual conduct for the purposes of interpretation if there is ambiguity or
82 The Scottish Law Commission listed fourteen cases, from 1830 to 1957, in its Discussion Paper
No 101 on Interpretation in Private Law (1996) at para 7.14 n 233.
83 Whitworth Street Estates (Manchester) Ltd v James Miller & Partners Ltd [1970] AC 583;
Wickman Tools Ltd v Schuler AG [1974] AC 235.
84 See e.g. Cameron (Scotland) Ltd v Melville Dundas Ltd 2001 SCLR 691. The current Scottish
approach has been criticised. See Professor McBryde’s Comment to the case just cited, and
Macgregor & Lewis, in Zimmermann, Visser & Reid, Mixed Legal Systems, 86.
85 It was alleged that this was in accordance with local custom but the court did not decide the case
on the basis of local custom.
86 Hunter v Barron’s Trustees (1886) 13 R 883 at 891.
87 Under the Scottish Law Commission’s recommendations, evidence of subsequent conduct would
have been admissible in this type of case. The Commission did not, however, think that
subsequent conduct would be relevant to a purely objective interpretation of a contract. See Scot
Law Com No 160 (1997), paras 2.24–2.29, 8.13.
interpretation 193
sufficient uncertainty.88 The requirement of ambiguity or uncertainty seems

suspect on policy grounds.
There is South African authority for the point that a court will have regard
to the subsequent conduct of the parties in deciding whether a contract is a
sham or simulate transaction.89 In this context it was said that the court would
seek to ascertain the true intention of the parties from all relevant circum-
stances, including the manner in which the contract was implemented. The
question in this type of case is slightly different from the question in an
90
interpretation case but nonetheless this line of authority supports the view
that subsequent conduct may be relevant for the purposes of ascertaining the
91
common intention of the parties at the time of conclusion of the contract.
D. ASSESSMENT OF THE PECL RULES
(1) Considerations which have to be taken into account

The main considerations which any legal system has to take into account in
framing rules for the interpretation of contracts seem to me to be these:
1. The need to respect the autonomy of the contracting parties: it is for
the parties to determine the contents of their contract: it is not for a
court to make a new contract for the parties.
2. The need for rationality and common sense and consistency in the
law. It would be irrational and contrary to common sense to interpret
words without regard to their context. It might be regarded as incon-
sistent to use one approach in deciding whether a contract had been
92
formed but another approach in interpreting the contract once formed.
3. The need to avoid unnecessary unfairness. It would, for example, be
widely regarded as unfair to allow a party to give the impression that a
term was being used in one sense, to allow the other party to rely on
88 See Rane Investments Trust v Commissioner, South African Revenue Service 2003 (6) SA 332
(SCA) and Hutchison et al, Wille’s Principles, 464: “Where … the terms of a contract are
ambiguous or vague, but the conduct of the parties shows that they have both given the same
meaning to the words used the court will give effect to that meaning.”
89 Michau v Maize Board 2003 (6) SA 459 (SCA).
90 In a simulation case the question is not what the parties meant by an expression but what legal
effect they intended their contract to have.
91 A similar point is made in G McMeel “Prior negotiations and subsequent conduct – the next step
forward for contractual interpretation” (2003) 119 LQR 272, by reference to Agnew v CIR [2001]
2 AC 710, where it was held that subsequent conduct was admissible to see whether a contract
was a sham.
92 See Lewis, in Zimmermann & Visser, Southern Cross, 195–216 and Scot Law Com No 160
(1997), para 3.8.
that sense, and then to turn round later and say that the term should
be given some quite different sense. This consideration often finds
expression in notions of good faith or personal bar or estoppel but it
can also come into play directly in interpretation.
4. The need to protect reasonable reliance of the parties and third parties.
Those who have relied in good faith on an apparent meaning should
not be prejudiced by an interpretation based on intentions or circum-
stances of which they did not know and could not reasonably be
expected to know.
5. The need for a measure of certainty and predictability in legal
relationships. This is sometimes said to favour an objective approach
to interpretation but it also suggests that the rules on interpretation
themselves should be clear and consistent. They should not be vague
and full of ill-defined exceptions and sub-exceptions.
6. The desirability of keeping the scope and length and cost of legal
proceedings within reasonable bounds. This consideration is often
reflected in doctrines to the effect that if the words of a written
contract are clear there is no need to go beyond them.
7. The desirability of imposing some discipline on those drafting con-
tracts. Drafters should not be encouraged to be lax: they might be so
encouraged if the courts were to look for actual intention and ignore
the words used in a written contract.
(2) Important policy choices

There are several basic policy choices to be made in drafting a set of rules on
interpretation.
(a) Scope
Should the rules include or exclude rules on the implication of terms? PECL
deals separately with implied terms. Article 6:102 PECL provides that:
In addition to the express terms, a contract may contain implied terms which stem
from
(a) the intention of the parties;
(b) the nature and purpose of the contract; and
(c) good faith and fair dealing.
93
This seems to be the correct approach. The process of interpretation begins
only when the terms of the contract have been determined.
93 It was also the approach taken in Scot Law Com No 160 (1997), para 1.6. See also Bank of
Scotland v Junior 1999 SCLR 284 at 291D–E per Lord Penrose.
interpretation 195
(b) Rules of law or rules of evidence?

Should the problems of interpretation be tackled by substantive rules or rules
of evidence? PECL has chosen substantive rules. This was also the approach
recommended by the Scottish Law Commission, which thought that the
major defect in the Scottish law on this subject was that it tried to solve the
94
problems by arbitrary and complicated rules of evidence. The Commission
pointed out that contracts have to be interpreted outside court proceedings
as well as in court proceedings. It recommended that the only rule of
evidence in this area should be that relevant evidence is admissible and
irrelevant evidence is inadmissible.95 At European level the merits of this
approach are even more obvious. It would be very difficult to persuade the
representatives of twenty-five European countries that the way to solve
problems of interpretation was to begin by rules excluding certain types of
potentially relevant evidence for the purposes of court proceedings but not
necessarily for arbitration proceedings or other situations where interpre-
tation might be an issue.
(c) One-step or two-step process?

By a two-step process I mean primarily the process available in English and
Scottish law whereby a written contract which fails to express the common
intention of the parties can first be rectified and then interpreted in its rectified
form. It seems clear that this two-step process would be difficult to support as
a solution at European level. It would be based on the assumption that a
rectification procedure is available in all EU countries and is the same in all of
them; alternatively it would mean that a unified European rectification pro-
cedure would have to be devised. The assumption would be unwarranted and
the device would be difficult to realise. Moreover it would be difficult to argue
at the European level that one solution should apply to important written
contracts which might justify expensive rectification procedures and another
solution to all other contracts.96 Only the one-step process seems suitable for
the purposes of model European rules on the interpretation of contracts.
94 Scot Law Com No 160 (1997), paras 1.2, 8.1–8.8.

95 This is already the rule in relation to rectification of documents in Scottish law: see the Law
Reform (Miscellaneous Provisions) (Scotland) Act 1985, s 8(2).
96 There may also be technical barriers to rectification in some cases. For example, in English law
there may have to be a mistake before there can be rectification: see McLauchlan (1997) 113
LQR 237. This is not a requirement in Scottish law: see the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1985, s 8. For another case where there was a technical reason why
rectification could not be used, see AXZS Industries v AF Dreyer (Pty) Ltd 2004 (4) SA 186 (W).
Similar observations apply to the other possible two-step process of inter-

preting a contract objectively and then saying that the parties are personally
barred or estopped from exercising rights based on that interpretation. It
would be difficult to persuade a European audience of the merits of this
approach as opposed to a straight one-step interpretation approach. Why not
simply say “As between you, the contracting parties, this term means what
you both intended it to mean” rather than “This term means what we say it
means but you are not allowed to act on that basis”?
(d) One rule for all contracts or different rules for different types?
The practical question here is whether the same rules of interpretation
should apply to all contracts whether or not the terms are embodied or
recorded in writing. PECL has one set of rules for all contracts. The word
“contract” in Chapter 5 generally means a contractual agreement, not a
97 98
contractual document. A unified approach seems the better approach.
There are millions of contracts which are never recorded in writing. Their
terms may, however, be recorded or provable in other ways and they may
require interpretation. A non-unified approach also gives rise to questions of
classification: what counts as a written contract? One of the implications of a
unified approach is that the law on the rectification of documents cannot be
relied on as a safety valve. Another is that restrictive rules of evidence apply-
ing only to contracts reduced to writing cannot be used to solve all inter-
pretation problems. A unified approach does not mean that the fact that a
contract has been deliberately reduced to formal writing must be regarded as
irrelevant. On the contrary, it would be a highly relevant circumstance to be
taken into account and would lead any interpreter to be most reluctant to
depart from the ordinary meaning of the words which the parties had used to
set out their agreement.
(e) Subjective or objective starting point?

It is quite clear that any reasonable set of rules will need to balance subjective
and objective considerations. What is not so clear is whether it is better to
begin with a reference to the common intention of the parties and then
97 There are references, e.g., to a contract being “concluded”. One concludes an agreement, but not
a document. However, in Article 5:107 PECL on linguistic discrepancies the reference to a
“contract drawn up in two or more language versions” seems to use “contract” in the sense of a
contract document.
98 This was the approach recommended by the Scottish Law Commission: see Scot Law Com No
160 (1997), para 1.9.
interpretation 197
supplement that, as PECL does, or to begin with a principle of objective

interpretation and then qualify that, as some European systems currently do.
The answer to the question depends partly on whether one is drafting
rules for the interpretation of contracts or rules for the interpretation of all
juridical acts. In the latter case it would be better to begin with an objective
principle, because it seems clear that the maker of a unilateral juridical act
cannot reasonably expect it to be interpreted according to his or her sub-
jective intention if that was never made known to the addressee and if the
addressee could not reasonably be expected to have known of it. In the case
of contracts there is a free choice because the reference to the common
intention of the parties generally avoids the problems of protecting reliance
interests as between the parties. In my view the expression “common inten-
tion” implies that the parties have communicated with each other sufficiently
to form a common intention: a common intention is not the same as identical
uncommunicated individual intentions. There is nothing unconscionable in
allowing either party to rely on the parties’ common intention in this sense.
Of course, different considerations apply if third parties are involved but that
is a special case. I come back to that later. In most cases it is only the parties
to the contract who are involved.
(3) Main PECL rules assessed

(a) Rule in Article 5:101(1) PECL
It seems to me that the Lando Commission’s decision to begin with common
intention is defensible. If the common intention of the parties as to the
meaning of an expression in their contract is admitted or proved it would be
hard to justify ignoring it and foisting some other contract on the parties. If
this is so, then there is much to be said for making common intention the
primary rule. It better expresses the regard which the law has for the auto-
nomy of the parties. It is moreover the prevailing European and international
approach. It is the approach adopted, for example, in the Unidroit Principles
of International Commercial Contracts. It would have been possible to
reverse the order of paragraphs (1) and (3) of Article 5:101 PECL and to say
something like
[i]n cases where neither of the following paragraphs applies a contract is to be
interpreted according to the meaning which a reasonable third person would give
to it in the circumstances.
That order of treatment could be justified on the ground that the situations
where the parties have a common intention as to the meaning of terms used
in their contract which differs from the ordinary meaning of those terms are
likely to be rare and exceptional. There is something to be said for beginning
with the ordinary case and then dealing with the exceptional case. However,
there are arguments both ways on this, and the order of treatment does not
greatly matter.
What does matter is that it has to be made clear that where the parties
have formed a common intention as to the meaning of an expression used in
their contract, that meaning should prevail in all questions between them.
The key case which has to be considered is the following. The parties agree
before the contract is concluded that a certain expression is to be used in a
certain sense. They do not, however, state that in the contract itself. Their
prior agreement is admitted by both parties or can be proved by evidence.
Surely any legal system with any regard for fairness would, in a question
between the parties, give effect to the parties’ common intention in this type
of case and would not allow one of the parties to found on a different meaning
objectively arrived at. English law, in spite of its general preference for an
objective approach, would allow the agreed basis to prevail if there is any
ambiguity on the point in the contract,99 and the requirement of ambiguity
now seems dubious in the light of recent developments,100 and in the light of
common sense.101
So the rule in Article 5:101 PECL seems justifiable, even if it need not
necessarily have been the opening rule.
(b) Rule in Article 5:101(2) PECL

Basic considerations of fairness seem fully to justify the rule in the second
paragraph of Article 5:101 PECL for the case where one party has used an
expression in a particular sense and the other party could not have been
unaware of this and concludes a contract without putting forward any other
meaning. It would be contrary to good faith and fair dealing to allow the
second party to argue later that a different objective interpretation of the
expression ought to be adopted.
Again we can consider a key case. Suppose that a builder sends a written
offer to do some work. On looking over a copy of the offer after it has been
posted the builder notices a mistake. He phones up the customer and says:
“There is a mistake in the offer I’ve just posted to you. When I say ‘square
99 The Karen Oltmann [1976] 2 Lloyd’s Rep 708 at 713.

100 Investors Compensation Scheme (note 25); Mannai (note 30).
101 See McLauchlan (1997) 113 LQR 237 at 243.
interpretation 199
feet’ I mean “linear feet.’” The customer says “Do you want to send a new
offer?” The builder says “No. As long as you realise what is meant that is fine.”
The customer sends a written acceptance of the offer without mentioning
this point. The phone call was recorded. Under PECL the contract would be
read as referring to linear feet. This seems reasonable.
It is perhaps worth noting that if paragraph (2) of Article 5:101 PECL is
accepted as sound policy then paragraph (1) has to be accepted too. The case
where both parties agree on a meaning for an expression is just one type of
case where one party uses an expression in a particular sense and the other
knows of this. Indeed a suitably drafted paragraph (2) would render para-
102
graph (1) unnecessary. That is not to say that it is undesirable to have
paragraph (1) separately expressed as a general rule.
(c) Rule in Article 5:101(3) PECL

The third paragraph in Article 5:101 PECL seems necessary and useful. It
meets the criticism that rules based only on the idea of common intention are
unrealistic because in many cases the parties will not have formed any
common intention as to the meaning of the expression under consideration.
(d) Rules in Article 5:102 PECL

Article 5:102 PECL is not an exhaustive list and it might be argued that this
sort of illustrative list is unnecessary because it merely states the obvious,
given the general underlying criterion that circumstances relevant to the
point in dispute should be taken into account and irrelevant circumstances
should not be.103 I have some sympathy with that view in general. Nonethe-
less it seems to me that in this instance the list is useful, given the difference
in legal systems regarding preliminary negotiations and subsequent conduct.
So far as negotiations are concerned it seems clear that these may some-
times be relevant to a determination, for the purposes of paragraph (1) of
Article 5:101 PECL, of whether the parties had a common intention as to the
meaning of a term. And clearly it will be necessary to consider negotiations if
one party claims that paragraph (2) of Article 5:101 PECL applies. The
negotiations may also shed light on the factual background with reference to
which the parties contracted and so may occasionally be relevant for the
102 This solution is the one adopted by CISG and the one recommended for Scottish law by the
Scottish Law Commission. See Scot Law Com No 160 (1997), para 3.13.
103 See C-W Canaris & H C Grigoleit, “Interpretation of contracts”, in A Hartkamp et al (eds),
Towards a European Civil Code, 445–469 at 456.
purposes of paragraph (3) of Article 5:101 PECL. It has been explained in the
House of Lords that the general exclusion of reference to negotiations in
English law is not for any technical reasons but just because it is thought that
such evidence will not be helpful.104 That, however, will clearly not always be
true in relation to the principal rules of interpretation in PECL. Of course,
much of the negotiating history will generally be irrelevant to the point in
dispute and it is in nobody’s interests to increase the cost of litigation by
allowing in a great mass of irrelevant evidence – but there are perhaps better
ways of excluding irrelevant evidence than having a blanket rule which also
excludes relevant evidence.
A similar point can be made about subsequent conduct. Often this will be
irrelevant or inconclusive. It may just suggest that the parties have departed
from the contract or chosen to ignore the contract. But sometimes subse-
quent conduct may cast a light backwards on what the knowledge or common
intention of the parties must have been at the time of conclusion of the
contract and then it would be relevant.
(e) Other rules

I do not propose to say anything about the other rules in Chapter 5 of PECL,
partly because of lack of space, but partly because they seem uncontroversial.
The drafters of PECL are, in my view, to be commended for not including
more rules of preference. Most such rules state the obvious or cause more
problems than they solve. For example, a rule to the effect that, unless a
different intention is indicated, ordinary words are to be given their ordinary
meaning and technical words their technical meaning seems so obvious as to
105
be unnecessary. Nobody would think of adopting any other approach.
(f) Some criticisms

One criticism of the PECL rules is that they deal inadequately with unilateral
juridical acts. Article 1:107 PECL says that the Principles apply with
appropriate modifications to unilateral promises and to other statements and
conduct indicating intention. It is quite clear, however, that important
modifications are needed before the rules on the interpretation of contracts
can be applied to unilateral juridical acts. The common intention of the
parties cannot be used as a criterion, and an objective approach is necessary
in order to protect reliance interests. The rather offhand way in which
104 Prenn v Simmonds (note 32).
105 There is a rule to this effect in the American Restatement, section 202(3).
interpretation 201
unilateral juridical acts are dealt with in PECL is perhaps excusable, or at

least understandable, given that the primary focus was contract law but this is
a matter which may have to be dealt with if the PECL rules are used as the
basis for an instrument of wider application.
Another criticism of the PECL rules is that they do not make any express
provision for the reliance interests of third parties. It might perhaps be
argued that the reference to good faith and fair dealing can be used to protect
the reliance interests of third parties but an express provision would seem
preferable. This is not an easy question and it might have been better to
tackle it overtly. What seems reasonably clear is that if the contract is of a type
which is intended from the outset to be relied on by third parties then an
objective interpretation should apply. Third parties should not be bound by
an interpretation based on intentions or circumstances of which they had no
knowledge and could not reasonably be expected to have had knowledge.
Into this category would fall negotiable instruments and contracts registered
in the land registers and creating rights and obligations intended to run with
the land. There are no doubt other similar cases. What, however, of the
position of assignees under ordinary contracts? Here the considerations
seem rather different. The reliance interests of the debtor also have to be
considered. The debtor does not need to consent to an assignment and
should not be exposed to a greater liability as a result of the assignment than
existed before. The principle that the assignee has no better rights than the
assignor is a useful one. It has to be remembered that an assignee runs
various risks in taking an assignment of a right under a contract. The contract
may have been varied by the parties. There may have been partial perform-
ance. In general the assignee is protected from such risks by rights against the
106
assignor. There seems no reason why the same approach should not be
107
used in relation to interpretation.
Criticisms can also be made of the drafting of Chapter 5. For example,
there is a lack of consistency as to what it is that is being interpreted.
Sometimes the reference is to the contract, sometimes to clauses, sometimes
to terms and once to terms and expressions. Strictly speaking it is perhaps
expressions used by the parties that are interpreted. The expression “could
not have been unaware” is suspect. It has a respectable pedigree in the UN
Convention on Contracts for the International Sale of Goods but it is
nonetheless rather unsatisfactory. If it means “knew” why not say so? If it
106 See Article 11:204 PECL.
107 This was the approach recommended by the Scottish Law Commission: see Scot Law Com No
160 (1997), para 3.17 n 23.
means “could reasonably be expected to have known” why not say so? The
reference to “reasonable persons of the same kind as the parties” also comes
from the UN Sales Convention but is also an unhappy one, for several
reasons. The fictitious referees are unnecessary. “Of the same kind” is
curious. Why not just say “the meaning which would reasonably be given to it
in the circumstances”? The beginning of Article 5:102 PECL should perhaps
be permissive rather than directory: it should say “regard may be had” to the
listed circumstances. Nobody would wish to force an interpreter to have
regard to circumstances which were of no relevance to the issue under
consideration. The reference to good faith and fair dealing seems to be
misplaced. Good faith and fair dealing are not relevant circumstances but
relevant considerations. It might be preferable to bring this provision out into
a separate Article.
These criticisms are, however, minor ones. They do not affect the con-
clusion that the PECL rules on interpretation seem preferable to the existing
Scottish and South African rules.
8 Third-Party Contracts
Philip Sutherland
A. BACKGROUND
B. WHY SHOULD THE LAW ALLOW THIRD-PARTY CONTRACTS
TO BE ENFORCED?
C. WHEN AND HOW SHOULD A THIRD PARTY ACQUIRE RIGHT
OR BENEFIT FROM CONTRACT BETWEEN OTHERS?
D. WHAT BENEFITS WILL THIRD PARTIES RECEIVE FROM
THIRD-PARTY CONTRACTS?
E. DIRECT OR INDIRECT BENEFITS FOR THIRD PARTIES
F. WHO WILL ACQUIRE RIGHTS FROM THIRD-PARTY
CONTRACTS?
G. AMENDMENT OR TERMINATION OF THIRD-PARTY
BENEFITS WITHOUT THIRD PARTY’S CONSENT
H. REMEDIES FOR ENFORCEMENT OF THIRD PARTY RIGHTS
I. HOW DO EVENTS THAT NORMALLY AFFECT ENFORCEMENT
OF CONTRACTUAL PROVISIONS IMPACT ON RIGHTS OF
THIRD PARTY?
J. CONCLUSION
A. BACKGROUND
A third-party contract is concluded where one person, the debtor or pro-
misor, agrees with another, the promisee, to perform an obligation to a third
1
party. Third party contracts are now enforced in most jurisdictions. Under
the influence of the Civil Law, they are recognised in the two mixed legal
systems of South Africa and Scotland as well as in Article 6:110 PECL.
In the past the doctrine of privity of contract combined with the doctrine of
consideration stood in the way of recognition of such contracts in England.2
1 France: Article 1121 Code Civil; New Zealand: Contracts (Privity) Act 1982; Netherlands: Article
6:254 BW; Queensland: Property Law Act 1974, s 55; USA: Restatement of Contract (Second) s
302; Western Australia: Property Law Act 1969, s 11(2), (3). See further Privity of Contract:
Contracts for the Benefit of Third Parties (Law Com Consultation Paper 121, 1991) (henceforth
Law Com CP 121) appendix; PECL, vol 1, 322 n 1.
2 Tweddle v Atkinson (1861) 1 B & S 393; Dunlop v Selfridge [1915] AC 847; Drive Yourself Hire
203
Both mixed legal systems have been contrasted with English law in this
respect.3 If the law in England had continued on this path, it would have been
difficult to find the type of common ground that is necessary for a proper
comparative analysis. However, English law underwent radical change in
1999 and it now recognises a highly sophisticated third-party contract in
terms of a new statute which is the product of a comprehensive comparative
4
investigation of Continental as well as Commonwealth sources. Suddenly
the mixed legal systems are playing catch-up. In this contribution the rules on
third-party contracts in Scotland, South Africa, PECL and England will be
compared from the perspective of a lawyer whose home system is a mixed one.
B. WHY SHOULD THE LAW ALLOW THIRD-PARTY

CONTRACTS TO BE ENFORCED?
According to the principle of privity of contract, a contract may create rights

and obligations only for the parties who conclude it. Hence, a person who is
not a party to a contract cannot derive rights, duties or contractual remedies
from it.5 A third-party contract negates this principle. The promisor under-
takes to the promisee to perform an obligation to the third party and the third
party then receives rights by virtue of the contract between promisor and
promisee.
Co (London) Ltd v Strutt [1954] 1 QB 250 at 272 (criticised (1954) 70 LQR 467); Midland
Silicones Ltd v Scrutton Ltd [1962] AC 446, discussed by M P Furmston, “Return to Dunlop v
Selfridge?” (1960) 23 Modern LR 373; Beswick v Beswick [1968] AC 58; Woodar Investment
Development Ltd v Wimpey Construction (UK) Ltd [1980] 1 WLR 277; R Merkin, Privity of
Contract (2000) (henceforth Merkin, Privity), paras 1.25 ff; Law Com CP 121, paras 2.11–2.16;
Privity of Contract: Contracts for the Benefit of Third Parties (Law Com No 242, 1996) (hence-
forth Law Com No 242), paras 2.1–2.7; R Flannigan, “Privity: the end of an era (error)” (1987) 103
LQR 564 at 564–572; Treitel, Contract, 587, 588–590.
3 Alfred McAlpine Construction Ltd v Panatown Ltd [2001] 1 AC 518 (henceforth Panatown) at
527, 534; Carmichael v Carmichael’s Executrix 1919 SC 636 (henceforth Carmichael (CS)) at
656; Carmichael v Carmichael’s Executrix 1919 SC (HL) 195 (henceforth Carmichael (HL)) at
198; T B Smith, “Jus quaesitum tertio: remedies of the “tertius” in Scottish Law” 1956 JR 3 at 3–
4; H L MacQueen, “Third party rights in contract: jus quaesitum tertio”, in Reid & Zimmermann,
History, vol 2 at 220–221; Tradesmen’s Benefit Society v Du Preez (1887) 5 SC 269 (henceforth
Tradesmen’s Benefit Society) at 276; McCullogh v Fernwood Estate Ltd 1920 AD 204 (henceforth
McCullogh) at 206; D-Jay Corporation CC v Investor Management Services (Pty) Ltd 2000 (2) SA
755 (W) at 762; P Sutherland & D Johnston, “Contracts for the benefit of third parties”, in
Zimmermann, Visser & Reid, Mixed Legal Systems at 208, 211.
4 Contracts (Rights of Third Parties) Act 1999. The Act had a long gestation: see Law Revision
Committee Sixth Interim Report (Cmd 5449, 1937); Law Com CP 121, paras 1.1–1.3; Law Com
No 242, paras 1.3–1.10; Merkin, Privity, paras 5.7–5.13. Treitel, Contract at 580, 651 stresses that
the Act did not reject, but merely created exceptions to, the doctrine of privity of contract.
5 Law Com CP 121, para 1.1.
third-party contracts 205
The principle of privity of contract, at least insofar as it prevents third-

party contracts, has been thoroughly discredited.6 Even in England, where
this aspect of the doctrine of privity of contract survived the longest, “[t]he
affirmation of privity was effected with at the very least little enthusiasm and
in some cases with the utmost reluctance”.7 Third-party contracts are useful
in non-commercial transactions and important in commercial relations.8
Personal and commercial relations are complex and they do not always
respect the boundaries of privity of contract. Nevertheless, privity of contract
has stunted the development of third-party contracts even in the Civil Law
9
countries, as well as in the mixed legal systems like South Africa and Scot-
land that have long histories of recognising them. The arguments for privity
of contract therefore have to be evaluated in greater detail.
It has been averred that privity of contract has to protect the contracting
10
parties, that contracts are personal and that third parties have no place in
enforcing them. But it is impossible to think why contracting parties should
not be able to invite a third party into their contract if that is their wish. It will
sometimes be difficult to determine when contracting parties intend to
create rights for third parties.11 This may lead to contractual gate-crashing,
but the determination of the intention of contracting parties is a general
contract law problem that is not more or less acute in this context. There is no
reason why the liberal principle of privity of contract should not be trumped
by another liberal principle: freedom of contract.12
Perhaps there is a further liberal sentiment that informs privity of
contract. It may be that privity of contract is aimed at protecting third parties
against the consequences of contracts that are concluded between other
parties. Contractual liability is created by means of agreement or consent.
6 Law Com CP 121, paras 1.2, 2.16, 4.1 ff.

7 Merkin, Privity, para 1.34; Beswick at 72; The Pioneer Container [1994] 2 AC 324 at 335;
Darlington Borough Council v Wiltshier Northern Ltd [1995] 1 WLR 68 (henceforth Darlington
Borough Council) at 76; Flannigan (1987) 103 LQR 564 at 572 ff (esp the list at 581–582); Law
Com No 242, paras 1.1, 2.63 (esp n 163), 2.64–2.69. See Law Com CP 121, para 1.2.
8 Panatown (note 3) at 538–539, 544 per Lord Goff; Furmston (1960) 23 Modern LR 373 at 376;
Law Com No 242, paras 3.9–3.27; McBryde, Contract, para 10–02 (with reference to Christie,
Contract, 3rd edn (1996), 291).
9 SME, vol 15, para 826; Tradesmen’s Benefit Society (note 3), 272–278; J C De Wet, Die
Ontwikkeling van die Ooreenkoms ten Behoewe van ’n Derde (Leiden PhD, 1940; henceforth De
Wet, Die Ontwikkeling), 4–146; L Getz, “Contracts for the benefit of third parties” 1962 Acta
Juridica 38 at 38–39; De Wet & Van Wyk, Kontraktereg, 93–94; Kerr, Contract, 88 n 228;
Sutherland & Johnston, in Zimmermann, Visser & Reid, Mixed Legal Systems at 210–211.
10 See also Treitel, Contract at 588.
11 See the minority to the proposals in Law Com CP 121 discussed in Law Com No 242, para 1.7.
12 Darlington Borough Council (note 7) at 76; Panatown at 544.
Third parties should not be burdened by an agreement concluded between

others.13 Yet, third-party contracts will not offend against this principle
because they concern only rights. Perhaps it may be suggested that rights
should also not be foisted onto third parties; that third parties might be
offended or prejudiced even by the mere acquisition of unwanted rights.14
But will this ever be the case? Rights may of course have negative tax or other
consequences for third parties. However, the automatic acquisition of third-
party rights cannot harm a third party if he is allowed to reject rights granted
15
in his favour.
In England it was decided that third-party contracts conflict with the
doctrine of valuable consideration. Indeed, the doctrines of privity of contract
and valuable consideration have not been clearly separated in the Common
16
Law. However, the doctrine of valuable consideration is a Common Law
17 18
phenomenon. It is not part of Scots or South African law. Still, third-party
contracts and this doctrine are not necessarily incompatible. In the
nineteenth century Lord de Villiers, the then Chief Justice of the Cape, was
intent on accommodating both the doctrine of consideration and third-party
contracts in the law of that colony. He decided that consideration does not
have to move from the third party, to allow him to enforce his right against the
promisor.19 The new English Act has adopted a similar approach. Accordingly
it has abandoned only this element of the doctrine of valuable consideration.20
13 Darlington Borough Council (note 7) at 76; Law Com CP 121, paras 5.36. 6.17; Law Com No 242,
paras 2.1, 2.63, 10.24; Treitel, Contract at 580, 588; F R Malan, “Gedagtes oor die beding ten
behoewe van ‘n derde” (1976) 9 De Iure 85 at 85–86 (although he thinks that a normal offer is not
made here); J C Sonnekus, “Enkele opmerkings om die beding ten behoewe van ’n derde” 1999
TSAR 594 at 598; Sutherland & Johnston, in Zimmermann, Visser & Reid, Mixed Legal Systems
at 209.
14 Crookes NO v Watson 1956 (1) SA 277 (A) (henceforth Crookes) at 292; Sonnekus, 1999 TSAR
594 at 598.
15 See below text accompanying notes 42–49. See also Contracts (Rights of Third Parties) Act 1999,
s 7(1); Law Com CP 121, para 5.39, Law Com No 242 at 12.3; Merkin, Privity, para 5.57. In
England third party rights will not affect any other rights of the third party.
16 See the cases mentioned above in note 2 as well as Panatown (note 3) at 544; Law Com CP 121,
paras 2.5–2.10; Law Com No 242, paras 6.3–6.8; Flannigan (1987) 103 LQR 564 at 568; Merkin,
Privity, paras 1.35–1.36, 5.50–5.53; Sutherland & Johnston, in Zimmermann, Visser & Reid,
Mixed Legal Systems at 211.
17 Smith, 1956 JR 3 at 3–5; McBryde, Contract, para 2–02, on gratuitous promise. See Tradesmen’s
Benefit Society (note 3) at 275 where this is recognised.
18 Conradie v Rossouw 1919 AD 279; Christie, Contract, 81.
19 Tradesmen’s Benefit Society (note 3) at 278; Getz, 1962 Acta Juridica 38 at 38. For criticism of this
type of approach in England, see Law Com CP 121, para 2.7; Furmston (1960) 23 Modern LR 373
at 384; Flannigan (1987) 103 LQR 564 at 568. But see Merkin, Privity, paras 1.21 ff.
20 Although only by necessary implication (Merkin, Privity, para 5.52). Thus, gratuitous promises
may not be made unless they form part of third-party contracts (Merkin, Privity, para 5.53).
Next, and in some ways related to the first point, it may be said that the
tripartite relationships established in terms of third-party contracts are
unmanageable and that adequate and clear rules cannot be made in order to
address these difficulties.21 Third-party contracts cannot be recognised
without establishing an intricate set of rules for dealing with them. But this
area of law is no more convoluted than many others. The benefits of allowing
third-party contracts seem to outweigh the disadvantage of creating a
relatively complex set of rules.
Once it is realised that there is a need for third-party contracts, the
previous argument can succeed only if other legal devices can effectively
22
fulfil the same functions as third-party contracts. In the past, several devices
23
have been used to achieve the same ends as such contracts. However, the
evasion of the doctrine of privity of contract for pragmatic reasons often leads
24
to abuse and the skewed development of other legal concepts. Moreover, a
legal system that does not recognise a third-party contract will not adequately
protect parties who are not able to obtain proper legal advice on how to avoid
the principle of privity of contract.25 Experience in England has shown that
other legal phenomena cannot always fill the void left by a strict principle of
privity of contract and that the creation of a range of exceptions to it merely
causes confusion.
The English Contracts (Rights of Third Parties) Act 1999 is a testimony to
the importance of recognising third-party contracts. However, the analysis
below points out the problematic areas that will have to be addressed by
every law on third-party contracts.
C. WHEN AND HOW SHOULD A THIRD PARTY ACQUIRE

RIGHT OR BENEFIT FROM CONTRACT BETWEEN OTHERS?
Logically, the third party to a true third-party contract should acquire a right
26
directly from the contract between the debtor and promisor, as is the case in
21 See the minority that opposed the proposals in Law Com CP 121, discussed in Law Com No 242,
para 1.7.
22 See again the minority that opposed the proposals in Law Com CP 121, discussed in Law Com No
242, para 1.7.
23 Law Com CP 121, paras 3.1–3.56; Law Com No 242, paras 2.8–2.62; Merkin, Privity, para 1.31,
ch 2; Treitel, Contract at 626–651.
24 Swain v The Law Society [1983] 1 AC 598; Panatown (note 3) at 535; Law Com No 242, para 1.8;
Clark Contracts v Burrel Construction 2003 SLT (Sh Ct) 73 (henceforth Clark Contracts), para
37.
25 Law Com CP 121, para 4.4; Law Com No 242, para 1.8.
26 See the three types of contracts distinguished by De Wet, Ontwikkeling at 140–141.
England27 and PECL.28 In the PECL comments it is stated that the third
party will acquire a right only if the promisee notifies him of the benefit.29
However, this conclusion is not justified by the text of PECL. Such an approach
would be illogical and cause grave and unnecessary uncertainty for third
parties.
Under the influence of the Roman-Dutch author Hugo Grotius,30 the
South African courts have determined that a third party will acquire a benefit
31
from a contract between others only if he has accepted it. What South
Africans call a stipulatio alteri is really a complex of two contracts, the con-
tract between the promisee and promisor according to which the promisor
agrees with the promisee to keep open an offer to the third party and the
second between the promisor and third party which comes into existence
32
when the third party accepts the offer which the promisor has made to him.
The South African third-party contract that operates in this manner fits in
easily with the ordinary principles of contract law. Many of the general
objections to third-party contracts mentioned above are avoided. But J C de
Wet correctly criticised this construction for not being a third-party contract
at all.33 The objection to the two-contract approach is not just theoretical. In
many situations, acceptance will have to be artificially constructed to allow a
third party a claim. The main problem in South Africa is that most courts and
commentators, especially De Wet, have viewed the two-contract approach
and the true contract for the benefit of a third party as mutually exclusive
alternatives. But why should it not be possible for a legal system to accommodate
27 See Contracts (Rights of Third Parties) Act 1999, s 1.

29 Comment H to Article 6:110 PECL.
30 De Iure Belli ac Pacis, II.11.18. See also Grotius, Introduction to Roman-Dutch Law, III.3.37,
III.3.38.
31 Tradesmen’s Benefit Society (note 3) at 278; McCullogh (note 3) at 206, 215; Hofer v Kevitt 1998
(1) SA 382 (SCA) at 386; Warricker v Liberty Life Association of Africa Ltd 2003 (6) SA 272 (W),
paras 8–10.
32 Pieterse v Shrosbree 2005 (1) SA 309 (SCA), para 9; Kynochs Ltd v Transvaal Silver and Base
Metals Ltd 1922 WLD 71 (henceforth Kynochs) at 77; Gayather v Rajkali 1947 (4) SA 706 (D) at
708; George Ruggier and Co v Brook 1966 (1) SA 17 (N) at 23; R G McKerron, “The juristic
nature of contracts for the benefit of third persons” (1929) 46 SALJ 387 at 394–396; Joubert,
Contract at 189; Christie, Contract at 308; Sutherland & Johnston, in Zimmermann, Visser &
Reid, Mixed Legal Systems at 215; Van der Merwe et al, Contract at 244–245, 247–251 where the
authors accept that there is some authority for this approach although they prefer an alternative
explanation for third-party contracts. See Mpakathi v Kghotso 2003 (3) SA 429 (W), paras 9–19
where a stipulatio alteri was clearly regarded as two contracts.
33 De Wet, Ontwikkeling at 152; De Wet & Van Wyk, Kontraktereg at 94–97; R Brownsword & D
Hutchison, “Beyond promissory principles and protective pragmatism”, in P Kincaid (ed),
Privity: Private Justice or Public Regulation (2001) (henceforth Kincaid, Privity) at 133 ff, 141;
Sutherland & Johnston, in Zimmermann, Visser & Reid, Mixed Legal Systems at 213–214.
both?34 According to a true third-party contract the third party acquires his
right from the valid contract between debtor and promisee. Where the South
African two-contract device is intended, the question is whether there was a
valid offer by the promisee and acceptance by the third party.35 Both rights
and duties, or burdens, for a third party can be established here.36 However,
from a terminological point of view, it seems strange to call this device a
stipulatio alteri or third-party contract. It should rather be labelled a third-
37
party option.
In Scotland a third party automatically acquires rights from the ius
38
quaesitum tertio. The acquisition of the third party’s rights does not depend
39
on his assent. According to Scots law, under the influence of the Institu-
40
tional Writer Stair, even unilateral promises may be enforced. Hence, it has
often been suggested that the foundation of the ius quaesitum tertio in
41
Scotland is unilateral promise or pollicitatio. But this proposal has not
found clear judicial support and is unconvincing. In a system where unilateral
promises are recognised, the need for third-party contracts is reduced, but
where there is a unilateral promise, there is no need to speak of a “third-party
contract”. Again a true third-party contract should be regarded as a unique
device for creating rights for a third party.42
South African and Scots law show that third party contracts are sui generis.
Attempts to equate them with other more familiar legal phenomena only lead
to confusion. Still, Scots law pertinently asks a fundamental question about
34 Sutherland & Johnston, in Zimmermann, Visser & Reid, Mixed Legal Systems at 215.
35 See Merkin, Privity, para 5.22. If the two-contract device is used, it may be possible in South
Africa to obtain rights on the basis of reasonable reliance, even if the stipulator did not intend to
grant such rights. In the true third-party contract this is inconceivable: see in England Law Com
CP 121, para 5.9. Only the reasonable reliance of the contracting parties is relevant.
36 See below, text accompanying notes 58–61.
37 See Malelane Suikerkorporasie (Edms) Bpk v Streak 1970 (4) SA 478 (T) at 482 where an analogy
with an option was drawn; Kynochs (note 32) at 77 where reference was made to a standing offer;
McKerron (1929) 46 SALJ 387 at 395; M J Oosthuisen, “Die aanspreeklikheid van die maats-
kappypromotor by voorinlywingskontrakte”, 1986 TSAR 360 at 363; Kerr, Contract at 85–86.
38 Although the third party often acquires a limited right initially: see below, text accompanying
notes 101–109.
39 Finnie v Glasgow and South Western Railway Co (1857) 3 Macq 75 (henceforth Finnie) at 90.
40 McBryde, Contract, para 2–02. In Scotland Stair, Institutions, 1.10.4, explicitly rejected the
opposing view of Grotius.
41 Smith, 1956 JR 3 at 16, 21; D I C Ashton Cross, “Bare promise in Scots law” 1957 JR 138 at 145–
146; D N MacCormick, “Jus quaesitum tertio: Stair v Dunedin” 1970 JR 228 at 233–234;
MacQueen, in Reid & Zimmermann, History, vol 2 at 221, 223; SME, vol 15, para 827 (but see
para 828).
42 A Rodger, “Molina, Stair and the jus quaesitum tertio” 1969 JR 34 and 128 (two parts) at 141–144;
McBryde, Contract, para 10–07; Finnie (note 39) at 89–90 per Lord Wensleydale; see Sutherland
& Johnston, in Zimmermann, Visser & Reid, Mixed Legal Systems at 216–217.
the law of contract. Very few systems recognise unilateral promise while most
embrace third-party contracts, but why should a legal system not recognise
unilateral promise if it allows two parties to create benefits for third parties?43
Although consent of or acceptance by a third party should not be neces-
sary for the creation of a right created in a contract between other parties,
such a right should of course not be force-fed to a third party, who should be
44
able to renounce it. The third party’s renunciation should cause the right to
45 46
fall away ab initio. This issue is seldom raised in Scotland, but in South
Africa even De Wet, who did not regard acceptance as a necessary require-
ment for establishing rights for third parties, nevertheless stressed that the
47
third party has the power to reject a right created for him by others. This is
48
clearly set out in PECL. The English Act is strangely silent on the matter of
rejection but it is inconceivable that renunciation will not be possible in
49
England.
Moreover, there are some difficult questions that will have to be answered
with regard to how and when renunciation of rights by third parties should be
possible. None of them are answered properly by the legal systems under
discussion. In answering these questions, the objective should be to protect
the third party who has received an unsolicited right. The risk of uncertainty
created by third-party contracts should be on the contracting parties, not the
third party.
In which way should it be possible to renounce a right? According to the
comments to Article 6:110 PECL, notice of rejection has to be given to the
debtor. Formal notice of renunciation of a third-party right provides clear
proof of rejection and it is advisable that third parties reject rights contracted
in their favour in this manner. But it is doubted whether such formalism
should be necessary to enable a third party to rid himself of an unwanted
right and whether this statement is justified by the text of PECL.
Should a third party be required to exercise his power of renunciation
within a particular or reasonable time, or should he have a continuing power
43 Article 2:107 PECL does so. See also Merkin, Privity, para 5.22.
44 See also above, text accompanying note 14.
45 In South Africa the Supreme Court of Appeal has apparently attempted to side-step problems of
repudiation by an insolvent beneficiary in the law of succession: Wessels v De Jager 2000 (4) SA
924 (SCA). But this case has often been criticised.
46 See McBryde, Contract, para 10–32; Smith, 1956 JR 3 at 15; MacQueen, in Reid & Zimmermann,
History, vol 2 at 224.
47 De Wet & Van Wyk, Kontraktereg, at 104, 108–109.
48 Article 6:110(2) PECL; Comment G.
49 See the discussion of rejection in Law Com No 242, paras 11.6–11.11; Merkin, Privity, para 5.62.
to reject the right bargained in his favour? Third parties should lose their
powers of renunciation only if they have either accepted rights or have
created the impression that they have done so.
Renunciation of a right by the third party may have drastic consequences
if there is a quasi-reciprocal relationship between the promisor and promisee
in the sense that the promisee has to perform to the promisor in exchange for
the latter’s performance to the third party. Should rejection be possible in
these situations and, if so, what should its effect be on the relationship
50
between the contracting parties? The existence of an element of reciprocity
should not deprive a third party of his power to reject the third-party right. In
England, although this has not been set out in legislation, the promisee
apparently will then be entitled to claim performance from the promisee but
51
will be liable to the promisor; and this may also be the case in Scotland.
However, this should be merely the default position. The contracting parties
should be allowed to depart from it where performance that was intended for
the third party cannot or should not be made to the promisee. In such circum-
stances the parties will have to agree either that the promisee will no longer
be liable to the promisor or that he has to perform despite the termination of
the promisor’s duty to render performance.
D. WHAT BENEFITS WILL THIRD PARTIES RECEIVE FROM

THIRD-PARTY CONTRACTS?
Only narrowly defined benefits may be granted to third parties in terms of
52
third-party contracts. For simplicity, reference has thus far been made only
to the acquisition of rights by third parties but immunities also may be
53
derived from contracts concluded between others. It has been pointed out
in England that a contract between A and B according to which A agrees that
he will not bring a particular claim against C can also be directly enforced by
54
C even though C does not obtain a right in the true sense in this situation.
The formulation of legislative provisions for dealing with third-party con-
tracts is difficult because benefits may consist of both rights and immunities.
50 See Merkin, Privity, para 5.62 on the distinction that was previously drawn.
51 Law Com No 242, paras 11.7–11.8; Merkin, Privity, para 5.62. See below, text accompanying
notes 101–109, on the right of the promisee.
52 Law Com No 242, para 10.24 (although the Contracts (Rights of Third Parties) Act 1999, s 1(1)(a)
does not make this clear: see Merkin, Privity, para 5.25).
53 SME, vol 15, para 840; McBryde, Contract, para 10–10.
54 Merkin, Privity, para 5.15; Law Com CP 121, paras 5.17–5.18; Law Com No 242, paras 10.24 ff.
See Contracts (Rights of Third Parties) Act 1999, s 1(6) and Merkin, Privity, para 5.46.
The new English Act mostly refers to the third party’s ability to enforce a
“term” in the contract, but this causes uncertainty.55 It would be more
accurate to refer to benefits and then to define that word as rights and
immunities, or to speak directly of rights and immunities in the legislation.56
PECL refers only to the third party’s rights.57 This term is too narrow and is
not ideal; but it probably can be interpreted to include immunities.
Duties or other burdens may not be imposed upon third parties in terms
58
of a third-party contract, although a right can be granted subject to a con-
dition that the third party will have to render some performance if he wants
59
to enforce it. The third party will be adequately protected in these situa-
tions. The condition cannot be directly enforced, and the third party will be
subjected to it only if he intends to take the benefit. However, it may be
difficult to determine where the line lies between contracts that impose con-
ditional benefits and ones that lay down duties, especially where drafting is
done by laymen.
In South Africa, a third party may become subject to duties in terms of a
stipulatio alteri. This is the primary advantage of the two-contract approach.60
Through it, reciprocal contracts may be concluded with third parties. In true
third-party contracts, promisees often have to perform duties that are
established in exchange for undertakings by debtors to provide third-party
benefits. This has led to many conflicts between third parties and promisees
in Scotland.61 The South African two-contract device can be used effectively
to prevent many of these conflicts.
55 But see Contracts (Rights of Third Parties) Act 1999, s 1(6), which speaks of “benefit”.
56 Many of the problems discussed by Merkin, Privity, paras 5.30–5.32, 5.47 can be addressed more
easily by legislation that is so worded.
58 This is never stated in the modern legislation because it is too obvious a point: Merkin, Privity,
paras 4.1, 5.14. See the problems that this principle will cause in cases where reciprocity is
required, SME, vol 15, para 830. See above, text accompanying note 14.
59 SME, vol 15, para 830; Contracts (Rights of Third Parties) Act 1999, s 1(4); Law Com CP 121,
paras 5.36 ff; Law Com No 242, para 10.25; Merkin, Privity, paras 5.43–5.45. See also Contracts
(Rights of Third Parties) Act 1999, s 8, on the application of arbitration clauses to the rights
obtained by third parties: also Nisshin Shipping Co Ltd v Cleaves & Co Ltd [2004] 1 Lloyd’s
Rep 38.
60 McKerron (1929) 46 SALJ 387 at 390, 393–394; Sutherland & Johnston, in Zimmermann, Visser
& Reid, Mixed Legal Systems at 219; Christie, Contract at 305–307; Crookes (note 14) at 291 with
reference to Jankelow v Binder Gering and Co 1927 TPD 364; Malelane Suikerkorporasie
(Edms) Bpk v Streak 1970 (4) SA 478 (T) at 481–482; Total South Africa (Pty) Ltd v Bekker 1992
(1) SA 617 (A) at 625; Unitrans Freight (Pty) Ltd v Santam Ltd 2004 (6) SA 21 (SCA), para 14;
Pieterse v Shrosbree 2005 (1) SA 309 (SCA), para 9 and Wimbledon Lodge (Pty) Ltd v Gore 2003
(5) SA 315 (SCA), para 54; Brownsword & Hutchison, in Kincaid, Privity at 140; Van der Merwe,
Contract at 244. See also Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W) at 168.
E. DIRECT OR INDIRECT BENEFITS FOR THIRD PARTIES
A third party cannot acquire legal remedies from a contract between other
62
parties merely because that contract benefits him. Where A concludes a
contract of sale with B, and B in turn agrees with C to sell the same merx to C,
63
no direct contractual bond arises between A and C. An agreement between
A and B that A may perform the obligation that he owes B to a third party C,
called an adiectus solutionis causa in South Africa, will cause A to be freed
from his obligation to B if he performs to C; but again C will not acquire any
right against A in these circumstances.64
The third party should obtain legal remedies from a contract between
others only if the contracting parties intend it.65 It may be difficult to deter-
mine when contracting parties have this intention. Both PECL66 and the
English Act67 attempt to address these problems although they are not very
successful in doing so. Both determine that a third party will acquire rights if
the contract expressly so provides. However, it is difficult to understand why
68
this obvious point needs to be made in a statute. It is also not quite clear
when exactly a contract expressly grants a third party a right.
69
Furthermore, the English Act creates a presumption, that a term purpor-
ting to create third-party benefits will be deemed enforceable by the third
party, unless “on the proper construction of the contract it appears that the
70
parties did not intend the term to be enforceable by the third party”. This
62 Law Com CP 121 at para 2.17; Treitel, Contract at 653; Gloag, Contract at 235, 237; Smith, 1956
JR 3 at 8; McBryde, Contract, para 10–11; SME, vol 15, para 835; H L MacQueen, “Third party
rights in contract: English reform and Scottish concerns” (1997) Edinburgh LR 488 at 490–491.
See cases listed above at note 60, esp Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W) at 168.
63 Merkin, Privity, para 5.33; McBryde, Contract, para 10–11. See Jankelow v Binder Gering and
Co 1927 TPD 364 at 368.
64 Mondorp Eiendomsagentskap (Edms) Bpk v Kemp en De Beer 1979 (4) SA 74 (A) at 88; Barnett
v Abe Swersky & Associates 1986 (4) SA 407 (C) at 411; Mpakathi v Kghotso 2003 (3) SA 429 (W),
para 14; Christie, Contract at 304. See generally on this legal device Lubbe & Murray, Contract at
708–709. See also Comment F to Article 6:110 PECL (at 319), and Comment C (at 318); Gloag,
Contract at 238.
65 Law Com CP 121, paras 2.19, 5.8 ff; Comment F to Article 6:110 PECL (at 319); Gloag, Contract
at 235; Smith, 1956 JR 3 at 7, 10; McBryde, Contract, paras 10–10, 10–12; SME, vol 15, para 835;
and the South African cases mentioned above at note 60.
67 Contracts (Rights of Third Parties) Act 1999, s 1(1), (2); Law Com CP 121, paras 5.8–5.15; Law
Com No 242, ch 7; Merkin, Privity, paras 5.24 ff.
68 See the explanation of Treitel, Contract at 652.
69 Merkin, Privity, paras 5.27 ff; Law Com No 242, para 7.1.7.
70 Contracts (Rights of Third Parties) Act 1999, s 1(1)(b) read with s 1(2). See Laemthong Inter-
national Lines Co Ltd v Artis [2005] All ER (D) 50; [2005] 1 Lloyd’s Rep 100; Kharegat v Deloitte
& Touche LLP [2004] EWHC 1767 (QB) at para 54; Nisshin Shipping Co Ltd v Cleaves & Co Ltd
[2004] 1 Lloyd’s Rep 38.
presumption may be useful in a system that previously applied a strict prin-

ciple of privity of contract, such as England; but this type of rule will cause
only confusion in jurisdictions that are familiar with third-party contracts.71
The PECL rule, that a third party also will acquire a right in his favour if
“such an agreement is to be inferred from the purpose of the contract or the
circumstances of the case”,72 is preferable to the English one. But this
provision is also not perfect. There is perhaps a need to reiterate that third-
73
party contracts can also be tacitly concluded, but it is not quite clear why the
determination of whether a tacit third-party contract has been concluded
cannot be left to general contract law principles.
All legal systems have sophisticated rules for determining the intention of
contracting parties. Ultimately these rules should be applied in deciding
74
whether contracting parties have concluded third-party contracts. Care
should be taken to keep third-party contracts within their proper sphere of
operation. It is often said that a proper approach to third-party contracts will
facilitate claims by delictual claimants who have suffered pure economic loss,
such as disappointed beneficiaries,75 or persons who have made statements
on which third parties have relied. However, the scope for the operation of
third-party contracts in these situations ought to be narrow. Third-party
contracts should not be abused in order to correct deficiencies in the law of
delict,76 although these contracts are important in creating a smooth transi-
tion from contract to delict.
F. WHO WILL ACQUIRE RIGHTS FROM THIRD-PARTY

CONTRACTS?
Once it is established that the contracting parties intended a third-party

contract, the beneficiary of the contract must be identified. Normally, it will
be relatively easy to determine the parties to a contract. After all, the con-
tracting parties actually conclude the contract. This is not true of third party
contracts.
71 Although a similar provision may be necessary in Scotland where Gloag, Contract at 236, has
remarked that there is a presumption against third-party contracts; see Sutherland & Johnston, in
Zimmermann, Visser & Reid, Mixed Legal Systems at 233.
73 See MacQueen, in Reid & Zimmermann, History, vol 2 at 233–234; McBryde, Contract, para 10–
12; Gloag, Contract at 236; Christie, Contract at 307.
74 Treitel, Contract at 653; Smith, 1956 JR 3 at 7, 10; SME, vol 15, para 835.
75 See Law Com CP 121, paras 3.12 ff; SME, vol 15, para 838; Brownsword & Hutchison, in
Kincaid, Privity at 138; Ries v Boland Bank PKS Ltd 2000 (4) SA 955 (C) at 963.
76 Law Com CP 121, paras 1.17 ff.
In England77 and PECL further guidance is given. Section 1(3) of the

Contracts (Rights of Third Parties) Act 1999 determines that “the third party
must be expressly identified in the contract by name, as a member of a class
or as answering a particular description”. This type of provision does not
appear to play any useful role and can only serve to confuse matters. The
statement in PECL,78 that the third party need not be identified at the time
the agreement is concluded, is sufficient. It has not always been clear in the
past in Scotland whether beneficiaries have to be identified in the third-party
79
contract. A plain legislative statement such as the one in PECL may help to
settle the matter.
According to all four systems under discussion, it is possible to conclude a
third-party contract in favour of a party who does not exist at the time when
the contract is concluded. The contract will be valid from the outset but the
third party will only acquire a right to claim performance once he comes into
80
existence. In England, South Africa and Scotland, a principal who did not
exist at the time when an agent concluded a contract in his favour cannot
ratify that contract even once it has come into being.81 It is accordingly
impossible to conclude a pre-incorporation contract as representative for a
company that is to be incorporated. Third-party contracts nevertheless may
be utilised to achieve the same result,82 although a reciprocal contract in
favour of a company that does not yet exist can only be concluded by utilising
the South African two-contract device.83
77 Law Com CP 121, para 5.19; Law Com No 242, paras 8.1 ff; Merkin, Privity, paras 5.33–5.36. See
Kharegat v Deloitte & Touche LLP [2004] EWHC 1767 (QB), para 54.
78 Article 6:110(1) PECL and Comment D (at 318–319).
79 Peddie v Brown (1857) 3 Macq 65 at 70–71; McBryde, Contract, paras 10-16–10-19, but see paras
10-18 and 10-19; SME, vol 15, para 833; See also Merkin, Privity, paras 5.33 ff; Law Com CP 121,
para 5.19. A stipulatio alteri in South Africa may be concluded in favour of a class: Van der Merwe,
Contract at 245.
80 Specifically confirmed in England: see Contracts (Rights of Third Parties) Act 1999, s 1(3). See also
Law Com CP 121, paras 5.20, 6.8; Law Com No 242, paras 8.5 ff; Treitel, Contract, 655. See also
MacQueen, in Reid & Zimmermann, History, vol 2 at 249–250; Van der Merwe, Contract at 245.
81 The locus classicus in this area is Kelner v Baxter (1866) LR 2 CP 174, accepted in South Africa in
Nordis Construction Co (Pty) Ltd v Theron Burke & Isaac 1972 (2) SA 535 (D & CLD);
Heathfield v Maqelepo 2004 (2) SA 636 (SCA), para 13; and in Scotland in Tinnevelley Sugar
Refining Co Ltd v Mirrlees, Watson and Yaryan Co Ltd (1894) 21 R 1009.
82 Merkin, Privity, para 5.38; Law Com No 242, paras 8.9 ff Most South African cases on third-party
contracts concern this issue: see e.g. McCullogh (note 3), esp at 208–209; Wimbledon Lodge (Pty)
Ltd v Gore 2003 (5) SA 315 (SCA), para 59. In Scotland in Cumming v Quartzag Ltd 1980 SC 276
at 285 the South African solution was discussed but not correctly understood: see MacQueen (1997)
Edinburgh LR 488 at 491; H L MacQueen, “Promoters’ contracts, agency and the ius quaesitum
tertio” 1982 SLT (News) 257–261; SME, vol 15, para 834 n 8. See also McBryde, Contract, para 10–14.
83 Nine Hundred Umgeni Road (Pty) Ltd v Bali 1986 (1) SA 1 (A); Sutherland & Johnston, in
Zimmermann, Visser & Reid, Mixed Legal Systems at 221.
G. AMENDMENT OR TERMINATION OF THIRD-PARTY

BENEFITS WITHOUT THIRD PARTY’S CONSENT
True third-party rights are created by agreement between the contracting

parties but the third party is not a party, or at least not an active party, to this
contract. The agreement between the promisor and promisee, as such, is an
insufficient justification for not allowing variation or termination of the third
84
party’s right. Nevertheless, the third party may be prejudiced if his right
were to remain in this tenuous state; it will never be safe for him to rely on it.
There needs to be a point at which the right of the third party becomes
fixed.85 Of course a contract cannot be fixed to the extent that it is no longer
open to any amendment. But the English Act correctly states that the consent
of the third party will be necessary once this point has been reached.86
The English Act accordingly determines that the contacting parties may
agree to vary or rescind rights of the third party, unless the third party relies
87 88
on those rights. Theoretically this is the ideal cut-off point; but it is often
difficult to establish the point in time from when the third party can be taken
to have relied reasonably on his rights. For this pragmatic reason the English
89
Act allows the third party also to settle his rights by acceptance. This part of
the English Act shows some similarities with the position in South Africa.
Before acceptance, the South African promisee and promisor will also be
able to vary or rescind the benefits that the third party will receive by
90
agreement between them. However, the role of acceptance in England
should not be confused with acceptance of a stipulatio alteri as it has been
understood in South Africa. In South Africa, acceptance creates the third
party right.91 In the true third-party contract, acceptance merely entrenches it.
The broad approach to variation and rescission in England can be en-
dorsed, but some of the more detailed aspects of this part of the English Act
84 Law Com CP 121, paras 5.27 ff
85 MacQueen, in Reid & Zimmermann, History, vol 2 at 249, and in (1997) Edinburgh LR 488 at
490, speaks of crystallisation.
86 Law Com No 242, paras 9.45–9.47; Merkin, Privity, para 5.86.
87 Contracts (Rights of Third Parties) Act 1999, s 2(1)(b), (1)(c). See Lord Salvesen in Carmichael
(CS) at 636, 649 who focused on intimation.
88 See Getz, 1962 Acta Juridica 38 at 50–53, for South Africa.
89 Contracts (Rights of Third Parties) Act 1999, s 2(1)(a); Precis 521 plc v William M Mercer Ltd
[2005] EWCA Civ 114, para 39 on acceptance of exemption clauses.
90 Van der Planck v Otto 1912 AD 353 at 366; Commissioner for Inland Revenue v Crewe 1943 AD
656 at 674–675; Crookes (note 14) at 285–287; Cape Produce Co (PE) (Pty) Ltd v Dal Maso 2001
(2) SA 182 (W) at 188; McKerron (1929) 46 SALJ 387 at 389–390. See also Christie, Contract at
310 (especially his analysis of the contrary statement in Commissioner for Inland Revenue v
Crewe 1943 AD 656 at 675).
91 See above, text accompanying note 30.
are open to criticism. Third parties may think that they are already protected
if they rely on a third-party contract. They may feel that acceptance and
reliance are alternatives and that, accordingly, there will be no need for
acceptance once there is reliance. However, acceptance will strengthen the
third party’s position as the burden of proof will be relaxed.92 The two
mechanisms for fixing third-party rights should not be stated as equal
alternatives as is done in England.
Further, the Act requires that assent be communicated to the promisor;
but is this notice requirement not too narrow? If the only function of
acceptance is to settle the third-party right, it should suffice if it is made to
93
the promisee. Indeed, conflicts in third-party contracts often arise between
the promisee and the third party because the promisee causes third-party
94
rights to be rescinded. It may be as important for the promisee to know
whether the right can be amended or withdrawn as for the promisor. PECL
95
allows notice to either the promisor or promisee.
Again, the difficulties of determining when a third party relies on the rights
created for him by the contracting parties is exacerbated by the wording of
the relevant provisions in the English Act. Section 2(1) determines that vari-
ation or rescission will no longer be possible where the promisor (1) is aware
that the third party has relied on the benefit;96 or (2) should reasonably have
foreseen the reliance and the third party has in fact relied on the benefit.97
This focuses too much on the state of mind of the promisor. Variation in
98
England will require agreement between the contracting parties. The question
whether the third party has acquired a settled right should rather be judged
from the perspective of the third party. The right should be regarded as settled
if the reliance of the third party is reasonable. The question whether the
promisor knew or reasonably should have known that the third party relied on
the benefit should be considered in determining whether reliance is reasonable.
99
At least the English Act is correct in not requiring detrimental reliance.
Where the contract for the benefit of the third party creates immunity against
any liability that may arise from a particular range of activities, there will be
92 Law Com No 242, paras 9.29, 9.32, 9.36; Merkin, Privity, paras 5.75, 5.80, 5.82, 5.85.
93 See De Wet & Van Wyk, Kontraktereg at 95; Getz, 1962 Acta Juridica 38 at 44.
94 See the Scottish cases cited below, text accompanying notes 101–109. See for England below, text
accompanying notes 139–142.
96 Contracts (Rights of Third Parties) Act 1999, s 2(1)(b).
97 Contracts (Rights of Third Parties) Act 1999, s 2(1)(c).
98 See the reasons for this, Law Com No 242, para 9.27. It may be possible for a promisee to deprive
a third party of a claim by bringing a claim himself: see below text accompanying notes 139–142.
99 Merkin, Privity, paras 5.75, 5.83.
reliance once the third party, who knows of the immunity, commences
activities within the sphere in which he has immunity. It will not be necessary
for him to perform an act that would otherwise lead to liability.100
In most cases in Scotland the agreement between promisor and promisee
will create initially a mere title to sue in favour of the third party.101 The third
party will obtain the claim himself or a settled claim only once the contract
has become irrevocable. Irrevocability will be “a condition, not a con-
102
sequence, of the expression of the jus in favour of the third party”. It is not
103
quite clear in Scotland what this title to sue means; but it is certain that the
promisee will have a stronger claim to performance than the third party, if the
promisee decides to claim it. In reality the promisee will deprive the third
104
party of his claim by doing so. A promisee has a similar power in England
105
up to the point where the right becomes settled, although Scots law does
not as a general rule allow the promisor and promisee to vary or rescind the
106
right of the third party by agreement as is the case in England. The ius
quaesitum tertio will become irrevocable on delivery of the document in
which the right is set out, or its equivalent.107 This rule developed in the
context of conflicts between promisees and third parties. It has been more or
less successful in resolving such disputes, but only because the delivery
requirement has been widely interpreted.108 Scots law correctly distinguishes
between the requirements for the third party’s right to bring a claim and for
the right becoming fixed. Yet the Scottish irrevocability rule seems to be an
imperfect tool for fixing rights. The right to sue, which the third party
acquires before the ius quaesitum tertio becomes irrevocable, is not the type
100 Merkin, Privity, para 5.83.
101 Carmichael (HL) (note 3) at 197–198; Gloag, Contract at 68, 235; see also MacQueen, in Reid
& Zimmermann, History, vol 2 at 246, 250, and Sutherland & Johnston, in Zimmermann, Visser
& Reid, Mixed Legal Systems at 223–224. For cases where claims that were allowed without
reference to the delivery requirement, see Carmichael (HL) (note 3) at 198. See Merkin,
Privity, para 5.26
102 Carmichael (CS) (note 3) at 645–646, 652; Carmichael (HL) (note 3) at 200.
104 This is not revocation in the strict sense: McBryde, Contract, paras 10-27–10-29.
106 See Law Com CP 121, para 5.27 n 50 on the position in Scots law with reference to Blumer v
Scott (1874) 1 R 379 (although it will be possible to provide for such variation by agreement: see
below, text accompanying note 126).
107 See on the delivery requirement Hill v Hill (1755) Mor 11580; Jarvie’s Trustee v Jarvie’s
Trustees (1887) 14 R 411; Cameron’s Trustees v Cameron 1907 SC 407; Carmichael (CS) (note
3) at 643–647, 653; McBryde, Contract, paras 4-07, 4-32–4-44.
108 Carmichael (HL) (note 3) at 203 per Lord Dunedin; and see at 205–207 per Lord Shaw of
Dunfermline; Allan’s Trustees v Lord Advocate 1971 SC (HL) 45; Gloag, Contract at 68–69;
SME, vol 15, paras 829–830; Sutherland & Johnston, in Zimmermann, Visser & Reid, Mixed
Legal Systems at 228–229.
of strong right that is normally established by a third-party contract.

Pretending that the cut-off point is determined with reference to delivery
merely draws attention away from what should actually be the cut-off point,
namely the reliance of the third party.109
PECL agrees with Scots law and differs from English law. It allows the
promisee unilaterally to withdraw the right granted to the third party before
110
the cut-off point, unless the former has agreed with the third party not to
111
do so. In the comments to PECL it is stated that the contracting parties
112
may agree to amend or revoke the third party’s right. But this statement is
not borne out by the text of PECL, and is not well thought through. For
instance, it does not state until when this power will exist.
Nevertheless, there are important differences between PECL and Scots
law. Revocation will no longer be possible if the third party has given notice of
113
acceptance to either the promisor or promisee. As in England, acceptance
will stabilise the third party’s right. But, in distinction from England, the right will
become irrevocable only on that basis and notice of acceptance can be given
to either the promisor or promisee.114 The English approach seems preferable
on the first issue, and the stance taken in PECL seems better on the second.
Under PECL the revocation will require notice to the promisor.115 In the
comments it is stated that acceptance need not be express;116 but it is not
stated how this will relate to the notice requirement in PECL. It is
understandable that notice to the promisor is required. The promisor should
know whether and to whom he should perform; but it may be asked whether
the third party cannot also expect to receive such notice, especially because
the reliance of the third party is not protected in PECL.
117
Moreover, PECL provides specifically that the promisee may settle the
third party’s right by notifying the third party accordingly. The notice
requirement is probably intended to ensure that the third party will know
109 The Scottish Law Commission has proposed that the delivery requirement be abandoned:
Constitution and Proof of Voluntary Obligations: Stipulations in Favour of Third Parties (Scot
Law Com Memorandum No 38, 1977), para 36. But something should be put in its place: see
also the criticism of McBryde, Contract, para 4-36; and MacQueen (1997) 1 Edinburgh LR 488
at 490.
111 Comment H (at 321).
114 See above, text accompanying notes 87–95.
115 Article 6:110(3) PECL; Comment G (at 320).
116 Comment G (at 321). See also J Kerr Wylie, “Contracts in favour of third parties” (1943) 7
THRHR 94 at 115, criticised by Getz, 1962 Acta Juridica 38 at 48.
117 Article 6:110(3)(a) PECL.
when to protect himself by giving notice of acceptance himself. But why should
the third party not receive protection from variation even without notice?
Of course contracting parties should be allowed to depart from these
regimes. The English Act makes clear that the rules regarding variation and
rescission are merely default rules.118 The contracting parties may by their
agreement be given a power to rescind or vary rights of the third party even
in situations where the third party’s benefit would otherwise have been settled
in terms of section 2(1). The promisee may be given the power to change the
119
beneficiary of the third-party benefit or to alter its terms. The agreement
may allow variation or rescission only with the consent of the third party in
situations where it would not be required in terms of section 2(1).
The English Act does not expressly provide that unilateral powers of
rescission and variation may be given to the promisor or promisee by the
120
contract, but the drafters thought that the Act implicitly allows for it.
Finally, the English Act grants the court power to allow the variation of third-
121
party rights without that party’s consent, even beyond the cut-off point. It is
doubtful whether there is a need for such a provision, but if there is, then the
wording of the English Act is problematic.
The general rules on revocation in Scotland,122 South Africa123 and PECL124
also merely reflect the default position. In South Africa, for instance, a pro-
misee may be given the power to rescind a third-party right after acceptance
by that party, although acceptance by the third party establishes a separate
125
contract between debtor and third party. In Scotland a provision in the
contract may grant powers of variation that go beyond, or are narrower than,
126
those that will normally exist for the promisee. In the comments to
127
PECL it is stated that the agreement may permit the promisee to rescind
or amend third party rights beyond the cut-off point established by it.
118 Contracts (Rights of Third Parties) Act 1999, s 2(3); Merkin, Privity, paras 5.76–5.77.
119 Treitel, Contract at 659.
120 Merkin, Privity, para 5.77 (although problems may arise with the application of s 2(4), (5)).
121 Contracts (Rights of Third Parties) Act 1999, s 2(4)-2(5); Merkin, Privity, paras 5.87–5.93; Law
Com CP 121, paras 5.32–5.33.
122 See the suggestion in Carmichael (CS) (note 3) at 653 per Lord Gurthrie, at 654–655 per Lord
Skerrington; J T Cameron, “Jus quaesitum tertio: the true meaning of Stair, I.x.5” 1961 JR 103
at 116–117; McBryde, Contract, para 10-03.
123 Sutherland & Johnston, in Zimmermann, Visser & Reid, Mixed Legal Systems at 227–228, 230–232.
124 Although this issue is not dealt with expressly in PECL.
125 On how the connection between the contracts is made, see below, text accompanying note 161.
126 Love v Amalgamated Society of Lithographic Printers of Great Britain and Ireland 1912 SC
1078 at 1082; Carmichael (CS) (note 3) at 659; McBryde, Contract, paras 10-27–10-29; SME,
vol 15, para 830; MacQueen (1997) Edinburgh LR 488 at 490.
H. REMEDIES FOR ENFORCEMENT OF THIRD PARTY RIGHTS
The third party acquires rights from the third-party contract. Where the
promisor does not adequately perform his duties in terms of the third-party
contract, the third party will have the remedies for breach of contract that are
128
ordinarily available to a contracting party. In Scotland it was initially decided
that a third party was not able to claim damages but this view apparently no
129
longer holds true. The English Act, correctly, states that the third party
should not be able to cancel the contract or make use of restitutionary
remedies.130 The same principle should apply in Scotland and in terms of
PECL. The South African two-contract approach calls for somewhat different
rules. There acceptance by the third party brings into being a separate
contract with the debtor. Often this contract will be reciprocal.131 The third
party should be able to cancel the contract for breach by the debtor in the
usual manner.
As an alternative to a contract for the benefit of a third party, the law
simply might allow the promisee to enforce a benefit in favour of a third
party. Nevertheless, the English Law Commission has shown convincingly
that this does not provide adequate protection to a third party. There is a
132
need to grant direct rights to the third party. The more complex question
which then remains is whether the promisee should also be allowed to
enforce third-party benefits.
Unless otherwise agreed, the promisee should indeed have such addi-
133
tional right against the promisor to force him to perform to the third party.
In South Africa the third party acquires no rights against the promisor before
acceptance. The promisee is therefore the custodian of the third party’s
interests before acceptance, and is able to interdict the promisor against
doing anything that would undermine the third party’s benefit.134 There are
conflicting authorities in South Africa on whether the promisee can enforce
a claim on behalf of a third party.135 However, there is no reason why he should
128 Contracts (Rights of Third Parties) Act 1999, s 1(5). Treitel, Contract at 656, calls this a fiction.
129 Especially Scott Lithgow Ltd v GEC Electrical Projects Ltd 1989 SC 412 at 438; MacQueen, in
Reid & Zimmermann, History, vol 2 at 233; SME, vol 15, para 837; Smith, 1956 JR 3 at 16–19;
MacQueen (1997) Edinburgh LR 488 at 492–493.
130 See Merkin, Privity, para 5.49, and Law Com No 242, para 3.33(i), and the Law Commission’s
interpretation of s 1(5).
131 See above, text accompanying notes 30–37, 60–61, on the two-contract approach.
132 Law Com CP 121, para 5.3; Law Com No 242, para 5.12; Merkin, Privity, para 5.8.
133 Article 6:110 PECL, Comment E (at 319).
134 Sutherland & Johnston, in Zimmermann, Visser & Reid, Mixed Legal Systems at 219–220.
135 African Universal Stores Ltd v Dean 1926 CPD 390 at 395; Gardner v Richardt 1974 (3) SA 768
(C) at 770; Cape Produce Co (PE) (Pty) Ltd v Dal Maso 2001 (2) SA 182 (W) 189; McKerron
not be allowed to bring such a claim, especially where he has some interest in
the performance. In other legal systems recognising true third-party con-
tracts, the third party acquires rights directly under these contracts but the
promisees will also be able to sue the promisor to perform to the third
party.136
The next, and more controversial, question is whether the promisee should
be allowed to sue the debtor to render the promised performance to him. In
terms of the two-contract approach, this is not possible in South Africa,
unless the parties have agreed differently. The true third-party contract
137
introduced by PECL also does not allow it. In Scotland the promisee will
be able to claim performance before the ius quaesitum tertio becomes irre-
138
vocable. There appear to be good policy reasons for this approach. The
Law Commission in England similarly proposed that the “promisor’s duty to
139
perform is owed both to the third party and the contractual promisee”; but
that performance to the third party should free the promisor from perform-
ance to the promisee. The Commission further stated that the debtor should
be allowed to perform to the promisee, with the promisee being allowed to
claim performance; and that there should be no priority of actions. The
Commission also expressed the view that performance could only be made to
the promisee up to the point when the third party’s rights become settled.140
This broad approach is sophisticated and sensible. However, it will also
cause difficulties. The English promisee, like his Scottish counterpart, will be
able to deprive the third party of the benefit by claiming the right himself
before it becomes settled. However, the English Act does not determine how
(1929) 46 SALJ 387 at 391–392; Christie, Contract at 309 regards an interdict as the appropriate
remedy. De Wet & Van Wyk, Kontraktereg at 98, and D B Hutchison, “Unravelling the
stipulatio alteri” (1974) 3 Responsa Meridiana 1 at 7, accept that the promisee will be able to
force the promisor to perform to the third party, albeit not without the latter’s co-operation.
136 Article 6:110 PECL, Comment E (at 319). It is suggested at 320 that the promisee will have to
enforce the third-party right before he receives notice of it from the promisee but there is no
justification for this interpretation: see above, text accompanying note 29. The Contracts
(Rights of Third Parties) Act 1999 clearly foresees an important role for promisees within third-
party contracts: see Merkin, Privity, para 5.60. See also the comment in Law Com No 242 at
paras 11.1–11.10, 11.20–11.22.
137 Article 6:110 PECL, Comment E (at 319); but see Comment G where it is wrongly suggested
that the promisee will be able to claim performance for himself before notice is given to the
third party. This is not borne out by the PECL text. See the argument in South Africa in Bursey
v Bursey 1997 (4) All SA 580 (E) at 592.
138 Sutherland & Johnston, in Zimmermann, Visser & Reid, Mixed Legal Systems at 228–229.
140 Law Com CP 121, para 5.34; Law Com No 242, paras 5.18, 11.1–11.4, 11.5–11.6, 11.11–11.15;
Merkin, Privity, paras 5.58–5.60.
disputes between promisees and third parties should be resolved.141 In

Scotland it is quite clear that the promisee holds the trump card before the
third party obtains an irrevocable right. The Law Commission did not regard
it as necessary to have this complex set of rules set out explicitly in legislation;
but it is impossible to see how they can be discerned from the common law
and the broad provisions of the Act.142
Finally, it can be asked whether or to what extent the promisee can claim
damages from the promisor for breach of his duty to the third party. When
the privity of contract doctrine held sway in England, the promisee was
sometimes allowed to claim for losses of a third party. The rules concerning
143
these claims are sophisticated if somewhat muddled. These rules in some
ways were intended to resolve problems that arose because the common law
did not allow third-party contracts. But, even after the coming into effect of
the new Act, their continued application to cases where only third parties
benefit from a contract but where, nonetheless, no third-party contract has
come into existence, can be justified. Lord Clyde in Panatown has commented
that “the doctrine of privity of contract … excludes the ready development of
a solution along the lines of the ius quaesitum tertio”.144 But this statement
should not be understood as meaning that there would not be a need for
acknowledging such claims in legal systems that recognise third-party
contracts.145 Thus, they have also been applied in Scotland.146 Otherwise, a
substantial claim for damages might conceivably disappear down a “legal black
147
hole”, although it has been correctly remarked that the black hole problem
is reduced in countries like Scotland (and for that matter South Africa)
where, unlike in England, specific implement is recognised as the primary
141 Law Com No 242, para 11.14; Merkin, Privity, paras 5.73–5.74, although Law Com CP 121,
para 5.34, suggests that the third party should be given preference.
142 Reliance is probably placed on Contracts (Rights of Third Parties) Act 1999, s 4, see below, text
accompanying note 154.
143 Especially Linden Gardens Trust Ltd v Lenesta Sludge Disposal Ltd [1994] 1 AC 85; Panatown
(note 3), where the judges were unanimous on this point but disagreed on the exact rules to be
applied here: Lord Clyde at 529 ff follows a narrow approach but Lords Jauncey, Goff, Millett
and, more reluctantly, Lord Browne-Wilkinson take a wider view of the bases for such claims;
Law Com CP 121, paras 3.39–3.44; Law Com No 242, paras 2.37–2.51, 5.15; Merkin, Privity,
paras 1.34, 2.9–2.15, 5.1, 5.3; Treitel, Contract at 592–603.
144 Panatown (note 3) at 534.
145 Panatown (note 3) at 535. See also the Scottish case of Clark Contracts, at paras 31, 36–38.
146 McLaren Murdoch & Hamilton Ltd v The Abercromby Motor Group Ltd 2003 SCLR 323
(henceforth McLaren Murdoch) at paras 33–42, rejecting Lord Clyde’s suggestion in Panatown
(above text accompanying note 144) but otherwise accepting his approach. Compare the more
conservative approach followed in Clark Contracts (note 24) at paras 23–30.
147 Panatown (note 3) at 529 per Lord Clyde; McLaren Murdoch (note 146) at paras 33, 42.
remedy for breach of contract.148 So the more difficult question is whether

these rules should apply to allow a promisee to claim damages that only the
third party will suffer in cases where a true third-party contract has been
concluded. The English Law Commission wanted to leave this issue to the
courts and the common law.149 The judgments of the majority in Panatown,
decided after the Law Commission’s report was published, but relating to a
contract concluded before the coming into force of the Contracts (Rights of
150
Third Parties) Act 1999, are to the effect that a person will not be able to
claim the damages suffered by another person if that person has a right to
151
claim them himself. This approach implies that a promisee in a true third-
party contract would not, without more, be able to rely on Panatown in claim-
ing damages suffered by the third party. This is how the Panatown case has
152
been understood in Scotland. Logically the promisee should only be allowed
to claim for his actual loss. This point is made clearly in the commentary to
153
PECL, albeit not in the proposed rules themselves. The same logic should
154
apply to a promisee in terms of the two-contract approach in South Africa.
However, the English Act has complicated matters. The proposal of the
Law Commission has been given statutory effect by section 4. It determines
that the Act does not “affect any right of the promisee to enforce any term of
the contract”. This provision suggests that the third party’s claim will have to
be ignored in determining whether the promisee can claim damages. How-
ever, it would have been better to abandon the idea of indirect claims for
damages where a third party has a claim in terms of the Act. At least the Act
155
tries to protect promisors against double jeopardy in these situations. How-
156
ever, these types of damages claims unnecessarily complicate matters, and
the third party may be left without indemnification where the promisee claims
157
damages but for some reason is unable to pay them over to the third party.
148 McLaren Murdoch (note 146) at para 40.

149 Law Com No 242, paras 5.12–5.18 (esp the reasons for this approach at para 5.15); Merkin,
Privity, paras 5.59–5.60. See also the original suggestion, Law Com CP 121, para 5.34
150 Panatown (note 3) at 535, 543, 544, 551–552.
151 Panatown (note 3) at 531–532 at 536 per Lord Clyde; at 566–568, 574–575 per Lord Jauncey; at
577–578 per Lord Browne-Wilkinson; and apparently per Lord Millett at 584, 593–595; but see
Lord Goff, esp at 551–552.
152 McLaren Murdoch (note 146) at para 42; Clark Contracts (note 24) at paras 31, 39–41.
153 This is also the implication of Article 6:110 PECL, Comment E (at 319).
154 African Universal Stores Ltd v Dean 1926 CPD 390 at 396; Bagradi v Cavendish Transport Co
(Pty) Ltd 1957 (1) SA 663 (D) at 668; Kerr, Contract at 90.
155 Contracts (Rights of Third Parties) Act 1999, s 5(a); Law Com No 242, para 11.17; Merkin,
Privity, paras 5.68, 5.70–5.72.
156 Panatown (note 3) at 534 per Lord Clyde.
157 Merkin, Privity, paras 5.68, 5.72.
Moreover, there is a possibility of double jeopardy where the promisee

claims such damages, even if he is able to claim only his own loss. Where the
promisee is obliged to indemnify the third party, for example in terms of a
contract between them, the loss to the third party because of the promisor’s
breach will also be a loss to the promisee.158 Where the promisee claims
damages and pays, or is able to pay, damages to the third party, the third party
has suffered no loss. But what happens if the promisee claims damages and
thereafter fails to perform to the third party? In England, the Act explicitly
avoids double jeopardy in these situations by placing the risk of ultimate loss
159
on the third party. PECL does not explicitly provide for this situation.
I. HOW DO EVENTS THAT NORMALLY AFFECT

ENFORCEMENT OF CONTRACTUAL PROVISIONS IMPACT ON
RIGHTS OF THE THIRD PARTY?
A host of events may affect the validity or enforceability of obligations in a

contract. It may be difficult to determine how such events impact on third-
party rights.
In South Africa the two-contract approach implies that the offer, which
the third party accepts, will stand separately from the original contract
between the promisor and promisee.160 The contract concluded with the
third party may be valid despite the invalidity of the previous contract. All
that is required is that the offer made by the promisor must be able to form
the basis of a valid contract, once it has been accepted by the third party. In
many cases, the invalidity of the first contract will merely deprive the third
party of protection before acceptance. Acceptance by the third party will be
ineffective only if the defect in the first contract also taints the offer made by
the promisor. This will, for instance, be the case where the promisor is of
unsound mind and therefore incapable of concluding a contract with the
promisee or making an offer to the third party.
The parties to the underlying contract may create a link with the third-
161
party contract. They determine the terms of the offer that is made to the
158 See Article 6:110 PECL, Comment A (at 318).

159 Contracts (Rights of Third Parties) Act 1999, s 5(b); Law Com No 242, paras 11.18–11.19;
Merkin, Privity, paras 5.69–5.72.
160 See Ackermann v Burland and Milunsky 1944 WLD 172, where the promisee could rescind a
contract induced by the promisor’s fraud: see Christie, Contract at 310. See on the con-
sequences of cancellation for breach Kerr, Contract at 92. Mpakathi v Kghotso 2003 (3) SA 429
(W) at paras 17–19, is not entirely persuasive, although it illustrates the point to some extent.
161 Kerr, Contract at 93.
third party. If that offer is to the effect that the third-party contract will be
void or will fall away if the underlying contract fails for a particular reason, the
second contract will be subject to a resolutive condition that will make its
existence subject to that of the first contract.
The two-contract approach is important in determining which part of a
third-party contract has to comply with any formalities imposed by the law.
Where the ultimate contract between the third party and promisee has to
comply with formalities, it will be valid if the offer to the third party and
acceptance by him comply with the formalities even if the contract between
162
the promisor and promisee does not.
In a true third-party contract, the relationship between the rights of the
163
third party and the contract from which they derive will be more intricate.
It may be proposed that a third party should be isolated from failures of the
third-party contract. But there are stronger policy reasons for not doing so. In
the English Law Commission’s consultation paper on third-party contracts, it
was contended that the third party should be in the same position as an
assignee,164 but it was convincingly concluded in their final report that this is
a dangerous analogy.165 The third party receives a benefit that derives from a
particular contract. Its existence and enforceability should depend on the
continued validity166 and enforceability of the contract, and should be deter-
mined in the context of that contract.167 Like any normal contracting party,
the third party should be conscious of this. Even the acceptance of the third
party should not be able to change the position, as a separate second contract
will not be created through it.
It is surprising that this topic is not addressed in PECL, but the difficulties
with legislating for these situations are illustrated by the English Act. It
determines that a promisor, confronted by a third party who tries to enforce
168
a term in the contract, will have available to him by way of defence or set-
169
off any matter that (1) applies to the term and arises from the contract; and
162 Kynochs (note 32) at 77; Malan (1976) 9 De Iure 85 at 88. See Trever Investments v Friedhelm
1982 (1) SA 7 (A), although this case was not expressly decided on the basis that the contract
constituted a stipulatio alteri.
163 See Goodwood Racecourse Ltd v Satellite Information Services Ltd 2004 EWHC 2346 (Ch) at
paras 41–42, on rectification of a third-party contract.
165 Law Com No 242, paras 10.8–10.16; Merkin, Privity, para 5.94.
166 Law Com CP 121, para 5.1; Law Com No 242, paras 10.1 (n 1), 10.4; Merkin, Privity, para 5.96.
167 Law Com No 242, paras 10.13–10.15. See for Scotland McBryde, Contract, para 10–09; SME,
vol 15, para 839.
168 See how the defence is defined by Law Com No 242, para 10.2.
169 See on this phrase Law Com No 242, para 10.11; Merkin, Privity, para 5.97.
(2) would have been available against the promisee.170 Moreover, it states that
the promisor will have available by way of defence, set-off or counterclaim
any matter that would have been available against the third party if that third
party had been a party to the contract.171
It is not quite clear from the wording whether a personal defence against
the promisee, such as estoppel, can be maintained against the third party.172
The Act merely states that the defence must relate to the term that provides
the third-party right; but this requirement does not produce a clear answer to
the problem. Although it may be difficult to determine what a personal
remedy is, the issue cannot be avoided. Defences that are personal to the
promisee should not be available against the third party, and legislation on
third-party contracts should make this clear.
The English Act correctly implies that a third party’s right will fall away if
the contract is cancelled by one of the contracting parties for breach by the
173
other. This may be a trap for unwary third parties. A third party may feel
hard done by if the right, though it can no longer be varied by the contracting
parties, is lost because one of the contracting parties has cancelled the
contract due to breach of the other. However, the third party will not be
entirely unprotected in these situations. He should be able to claim damages
in contract from the promisor where the contract is cancelled because of his
breach, and in delict (unless there is a specific contract between the promisee
and third party174) from the promisee where the promisee’s breach caused
the termination of the contract.
Where the promisor has to perform the duty to the third party in exchange
for performance by the promisee, it should be possible for the promisor to
withhold performance to the third party until he has received counter-
performance. This is the implication of the English Act and the law will
probably be no different in terms of PECL. But can the third party force the
promisee to perform to enable him to claim performance from the promisor?
Perhaps the answer should be no, but then the promisor and promisee
170 Contracts (Rights of Third Parties) Act 1999, s 3(2), (3).

171 Contracts (Rights of Third Parties) Act 1999, s 3(4); Law Com No 242, paras 10.17–10.21;
Merkin, Privity, para 5.103. The counterclaim would have to concern a matter not arising from
the contract.
172 See the discussion and criticism in Merkin, Privity, paras 5.100–5.101; Law Com No 242, para
10.2; and the distinction that is drawn here.
173 See similarly in South Africa Bagradi v Cavendish Transport Co (Pty) Ltd 1957 (1) SA 663 (D)
at 668; Christie, Contract at 311.
174 Compare Article 6:110 PECL, Comment H (at 321).
should not be allowed to use reciprocity as an instrument to defeat the rights

of the third party.175
The contracting parties should be able to extend the defences which the
promisor will have against the third party. The English Act determines that
the promisor will have as a defence, or a right of set-off, any matter which the
contract expressly provides should be available against the third party and
176
which would have been available against the promisee. This provision places
an important limitation on agreements that extend the promisor’s defences.
They must be expressly set out in the third-party contract. There are good
policy reasons for such a requirement since it allows third parties to
determine the limits of their benefits. However, the second requirement,
namely that the defence should be available against the promisee, creates
problems because contrary to the wording of the provision but in line with
the intention of the legislator the parties can also provide for defences against
the third party that are not available against the promisee.
Conversely, it is conceivable that the parties may want to create rights for
the third party that are not subject to the failures and limits of the contract,
and the English Act allows for this, but only by express term.177 Furthermore,
there are limits to the efficacy of these clauses. If the exclusion provision
itself is affected by the defect in the contract, for instance where the contract
is rescinded for misrepresentation, or undue influence, the right of the third
party will also be so affected.
J. CONCLUSION
The South African stipulatio alteri is not a third-party contract at all. In South
Africa there is a need for a true third-party contract alongside what is
currently so described. Scots law has a true third-party contract but has been
plagued by the delivery requirement. Legislative reforms along the lines of
the English Act or PECL will be useful in both jurisdictions. Nevertheless,
existing rules in the mixed legal systems should not simply be jettisoned. The
South African two-contract option can be utilised fruitfully in the other legal
systems under discussion. In several respects the Scots law on third-party
contracts is very refined. Both mixed legal systems raise important issues that
175 Sutherland & Johnston, in Zimmermann, Visser & Reid, Mixed Legal Systems at 218.
176 Contracts (Rights of Third Parties) Act 1999, s 3(3); Law Com No 242, para 10.15; Merkin,
Privity, para 5.102.
177 Contracts (Rights of Third Parties) Act 1999, s 3(5). Law Com No 242, paras 10.13–10.16;
Merkin, Privity, para 5.99.
improve the overall understanding of these contracts.

The legal systems under discussion are far from homogenous when it
comes to third-party contracts. However, they are not as far removed from
one another as may appear at first glance. Similar trends, difficulties and
policy problems can be discerned in all of them. The new English Act has
erased many of the differences between the Common and the Civil laws, but
cultural and, to a lesser extent, historical differences between the different
legal families are still apparent.
Scotland and South Africa, the two mixed legal systems, require legislative
reform, in the English style but without some of the odd rules that are the
legacy of the English doctrine of privity of contract. PECL should be
important in establishing the best sets of rules for these systems.
9 Payment
Charl Hugo
A. INTRODUCTION
B. FORM AND MANNER OF PAYMENT
(1) South African and Scots law
(2) PECL compared to South African and Scots law
(3) Conclusion
C. PAYMENT BY THIRD PARTY
(1) Introduction
(3) Scots (and some English) law
(5) Conclusion
D. FINAL REMARKS
A. INTRODUCTION
Chapter 7 of PECL deals with the performance of obligations. The focus of
this contribution is on the performance of a particular type of obligation,
1
namely the obligation to pay money, or, in other words, on payment. Two
questions relating to payment dealt with in PECL are considered here in
comparative perspective namely: (1) the form and manner of payment; and
2
(2) payment by a third party.
1 This innocent-looking and apparently simple definition should be approached with care. It
contains terms such as “performance” and “money” both of which are anything but simple. See,
e.g., R M Goode, Commercial Law, 2nd edn (1995), 489 on “money”, and J E du Plessis “Die
regsaard van prestasie” (2002) 65 THRHR 59 on “performance”. See also on the meaning of
“money” and “payment” McBryde, Contract, paras 24-01, 24-07.
2 PECL deals with a number of further topics relevant to payment namely: (1) the place of per-
formance (or payment) (Article 7:101 PECL); (2) the time of performance (Article 7:102 PECL);
(3) early performance (Article 7:103 PECL); (4) currency of payment (Article 7:108 PECL);
(5) appropriation of performance (Article 7:109 PECL); and (6) money not accepted (Article
7:111 PECL). The other provisions of Chapter 7 PECL relate mainly to other types of performance.
230
payment 231
B. FORM AND MANNER OF PAYMENT
(1) South African and Scots law

The point of departure in both South African and Scots law is that payment
3
must be in legal tender, i.e. notes and coins. The amount that the creditor is
4
compelled to accept in coin is, however, statutorily limited. A creditor may
5
reject payment in foreign currency unless otherwise agreed in the contract.
Despite being widely accepted in Scotland, Scottish bank notes are not legal
6
tender, whether in Scotland or elsewhere in the United Kingdom. They are
7
promissory notes widely accepted and negotiated.
Payment in cash, however, is very often unpractical and unusual. Various
other manners of payment have developed in the course of time such as
payment by cheque, credit card, and, mainly for payments in international
contracts, letters of credit.8 Due to the widespread use of such alternative
methods of payment it is somewhat divorced from reality to regard them as
the exception and legal tender or money as the rule.9 Especially as regards
payment by cheque, the South African courts have developed guidelines to
prevent the embarrassment of debtors intending to pay in this way. As early
as 1917 De Villiers JP stated as follows in Schneider and London v Chapman:
Now it can be said at once that generally speaking … the tendering of a cheque is
not payment. But having regard to the course of commercial dealings in the
modern world, which is so very different from what it used to be two or three
hundred years ago, the Court will not require very strong evidence to show that
the parties in the particular transaction contemplated that payment might be
10
made by cheque.
3 On South African law see B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A)
(henceforth B & H Engineering) at 285G; Van der Merwe et al, Contract, 484, 486; F R Malan &
J T Pretorius (assisted by S F du Toit), Malan on Bills of Exchange, Cheques and Promissory Notes
4th edn (2002) (henceforth Malan & Pretorius, Bills of Exchange), paras 40, 188. On Scots law see
Glasgow Pavilion Ltd v Motherwell (1903) 6 F 116 at 119; Walker, Principles, vol 2, 140;
McBryde, Contract, para 24–08; Gloag, Contract, 709.
4 See s 17(2) of the South African Reserve Bank Act, 90 of 1989. For a summary of the Scottish
legislation in this regard see Walker, Principles of Scottish Private Law, 4th edn (1989)
(henceforth Walker, Principles), vol 2, 140 n 85. See also Walker, Contract, para 31.30.
5 Van der Merwe et al, Contract, 484 n 16. The currency in which the debt must be paid is that of
the locus solutionis. See Joffe v African Life Assurance Society Ltd 1933 TPD 189 at 195. Scots
law appears to be the same; see McBryde, Contract, para 24-03 n 19.
6 Walker, Principles, vol 2, 140 n 85; McBryde, Contract, para 24–08.
7 Leggat Brothers v Gray 1908 SC 67 (henceforth Leggat Brothers) at 74; Walker, Contract, para
31.30.
8 For an overview of the development of methods of payment see C Visser, “The evolution of
electronic payment systems” (1989) 1 SA Merc LJ 189 at 189–191.
9 Christie, Contract, 469 regards it as “almost an anachronism”.
10 1917 TPD 497 at 500.
Factors that will assist a court to determine whether it is competent for a

creditor in a particular transaction to reject payment by cheque, include the
previous transactions between the parties, the purpose for which the cheque
has been rejected, and whether the creditor has given a reasonable warning
to the debtor that he will not accept payment by cheque.11 Similarly, in Scots
law, an authorisation of payment in a common form such as a cheque or
Scottish bank notes “may easily be implied”.12
The precise effect of giving a cheque in payment has received consider-
able attention in South African law. In Gordon v Tarnow it was regarded as “a
conditional payment of the rent”, the effect of which was “to suspend the
13
respondent’s right of action, not to extinguish the debt.” The most recent
authoritative pronouncement on this matter is probably that of Grosskopf JA
in B & H Engineering v First National Bank of SA Ltd:
The giving of a cheque is normally intended, not to novate the debt for which it
was given, but to discharge it by payment. Since the creditor only receives his
money under the cheque when the drawee bank pays it, commercial sense requires
that the underlying debt should continue in existence until the creditor actually
receives the money. On the other hand, the creditor, having accepted a cheque,
14
must normally defer action on his antecedent debt to allow the cheque to be met.
Thus, when a debt is paid by giving a cheque, there are two obligations that
co-exist. The original or underlying debt (which is the causa for the cheque)
is suspended until the cheque is either honoured or dishonoured. If it is
honoured, the original debt is discharged; if it is dishonoured the original
15
debt is no longer suspended and may be enforced. There is no novation, at
16 17
least not as a rule. Despite some early academic criticism, this must now
be regarded as settled law in South Africa.
11 Van der Merwe et al, Contract, 486; Esterhuyse v Selection Cartage (Pty) Ltd 1965 (1) SA 360 (W)
at 361D–F. Even where the parties have agreed to cash payment, “cash” has been interpreted widely
to include payment by cheque: see Sibbald v Dakota Motors 1956 (3) SA 203 (T) at 207A–B.
12 McBryde, Contract, para 24–08; Walker, Contract, para 31.31.
13 1947 (3) SA 525 (A) at 540.
14 1995 (2) SA at 279 at 285I–J. See also Adams v SA Motor Industry Employers Association 1981 (3) SA
1189 (A) at 1199H–1200C (although this case deals with promissory notes the principle is the same).
15 See note 14 above. See also L R Caney, A Treatise on the Law of Novation including Delegation,
Compromise and Res Judicata, 2nd edn (1973), 26; Malan & Pretorius, Bills of Exchange, para 199.
16 In B & H Engineering (note 3) the court recognised that the intention of the parties may in a
particular case be to novate the original debt but mentioned, correctly I would submit, that this
would “seldom accord with the requirements of commercial practice or the expectations of
businessmen” (per Grosskopf JA at 285H).
17 See W G Burger, “Payment by cheque: cash or credit” (1957) 74 SALJ 454 at 457; J C Stassen,
“Betaling deur middel van ‘n driepartykredietkaart” 1978 De Jure 134 at 138. In Eriksen Motors
(Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A) Holmes JA, with specific
reference to the views advanced by the above authors, held that they must yield due to the weight
of authority to the contrary (at 693H).
payment 233
Recent Scots textbooks,18 following English legal terminology, regard

payment by cheque as “conditional payment” as opposed to “absolute pay-
ment”. Different terminology in this case, however, does not mean difference
in substance. Conditional payment, according to Chitty, simply means that
although the original debt remains due during the currency of the cheque,
the creditor’s remedy is suspended until it is due, when it is either discharged
19
(if the cheque is honoured) or revives (if it is dishonoured). The acceptance
of an instrument as absolute payment, on the other hand, according to
20
Chitty, means that the original debt is extinguished and the creditor has no
remedy other than on the instrument itself. This would not appear to differ
from the position in South African law.
As to whether accepting a cheque in payment constitutes a novation of the
original debt, Scots law is not entirely clear. The classical exposition of the
nature of cheque payment in Scots law is that of Lord President Dunedin in
Leggat Brothers v Gray:
It is … quite obvious that when a creditor takes a cheque he takes it on the
hypothesis that the cheque is going to be honoured, but if when he goes to the
bank the cheque is not honoured … then there is no question that he would still
have an action against his original debtor. … I do not know that it is necessary to
refer the matter to any particular legal category, but if it is, I should rather suppose
that the honouring of the cheque was a condition resolutive, and that if payment of
the cheque failed to be made, the effect would be that no payment had been
made, and the original debt would be set up again. …[I]t seems to me that
payment is complete the moment that the creditor has accepted the cheque as in
payment, subject always to the condition that the cheque will be met when
21
presented.
The resolutive-condition construction employed here appears to me to lead

to the conclusion that the acceptance of the cheque extinguishes the
underlying debt (as opposed to merely suspending it) and that it comes to life
22
again if the cheque is dishonoured. This, to my mind, looks very much like
novation (albeit a novation that can be resolved – a conditional novation).
Thus MacQueen, with reference to the Leggat Brothers case, states cate-
gorically that payment by cheque discharges the underlying obligation from
18 Walker, Contract, para 31.31; McBryde, Contract, para 24–10, with reference to Bolt & Nut Co
(Tipton) v Rowlands, Nicholls & Co [1964] 2 QB 10; Gloag, Contract, 709.
19 Chitty on Contracts 28th edn (1999) (henceforth Chitty) vol 1, para 22-074.
20 Para 22–077.
21 1908 SC at 67, 73–74. See also McBryde, Contract, para 24–09; Walker, Contract, para 31.31;
Gloag, Contract, 709.
22 Note also the formulation that “payment is complete” on acceptance of the cheque.
the time of receipt of the cheque, but that the discharge is conditional.23 It is
suggested, however, that too much has been made of the resolutive-condition
construction in the context of this case read as a whole. The Lord President’s
reluctance “to refer the matter to any particular legal category” should be
noted. Moreover, it appears later in the judgment that the question whether
or not “the delivery and acceptance of a cheque really extinguished the debt
during the interval between its acceptance and the payment of the money by
the bank” was argued before the court. The court termed this “an interesting
discussion” but declined to express its views on this question which it
24
regarded as “rather abstract and logical than practical”.
Embarking, as an academic, on the luxury of addressing this abstract question
logically, it seems to me sensible to do so from the perspective of novation.
Stair, in considering the discharge of an obligation by novation, states:
Innovation is the turning of one obligation into another. … Innovation is not

presumed by granting a new obligation … but it is rather held to be as caution or
corroboration of the former obligation, consistent therewith; and in the civil law it
is never esteemed innovation, unless it be so expressed … ; but with us, though it
be not named, yet, if it appear to have been the meaning of the parties, not to
25
corroborate, but to take away the former obligation, it is a valid innovation.
An intention to (in)novate will not lightly be ascribed to the parties. It is

suggested that the acceptance of a cheque is in the rule indeed a corro-
boration of the underlying debt and does not extinguish it. The debt merely
cannot be enforced until the cheque has been dishonoured. It is accordingly
suggested that the employment of the resolutive-condition construction in
this context can be misleading.26 The established law in England and in South
Africa on this point appears to me to be more in line with the likely intentions
of the parties. Moreover, at least one Scots authority has expressed the view
that acceptance of a cheque in payment does not, in the rule, constitute a
27
novation.
23 H L MacQueen “Payment of another’s debt” in D Johnston & R Zimmermann (eds), Unjustified

Enrichment: Key Issues in Comparative Perspective (2002) (henceforth MacQueen, in Johnston
& Zimmermann, Unjustified Enrichment), 458 at 480.
24 1908 SC at 76.
25 Stair, Institutions, 1.18.8 (emphasis CH).
26 It is interesting to note that the construction of a “resolutive condition” employed in the Leggat
Brothers case was also taken up in the first edition of Malan’s textbook, but appears to have been
jettisoned in later editions. Compare F R Malan (assisted by C R De Beer), Bills of Exchange,
Cheques and Promissory Notes in South African Law (1983), para 318, and Malan & Pretorius,
Bills of Exchange, para 199.
27 Gloag, Contract, 709 (ironically with reference to, inter alia, Leggat Brothers).
payment 235
It is submitted that some, but not all, of the reasoning pertaining to

cheques can be extended to credit cards.28 A credit card is clearly not cash in
the sense of being legal tender. It has been held in England that when a
person tenders a credit card in payment, the presentation of the card to the
merchant is a representation by the cardholder that he has the actual
authority of the bank to conclude a contract between the bank and the
merchant under which the bank will honour the sales voucher for the goods
29
or services on the presentation of the voucher to the bank. This is probably
30
good law also in South Africa. Payment by credit card is widespread and
generally very effective and convenient. As in the case of cheques, it will
therefore not take much to convince a court that a creditor has agreed to be
paid by credit card. It is suggested, for example, that a creditor who has the
mechanical or electronic facilities necessary for credit card payments, will be
hard-pressed to convince a court that he did not contemplate payment by
credit card, especially, as is often the case, where the availability of credit card
31
facilities is also advertised on the premises. Thus, the position in this regard
is similar to that in the case of cheques.
Payment by credit card differs in one important respect from payment by
cheque. Although, in both cases, the creditor has to look to a third party for
the money (the drawee bank and card issuer respectively), the relationship
between the creditor and third party differs significantly. In the case of a
cheque the creditor has no right as against the drawee bank to be paid. In the
case of the credit card the card issuer itself becomes a debtor of the creditor
32
by virtue of the contract between them. What impact might this have on the
underlying debt? There is academic support in South Africa for the view that
28 In B & H Engineering (note 3) at 285G–H Grosskopf JA states, somewhat vaguely, that the rules
regarding the giving of cheques can be extended to “other instruments”. See also Stassen, 1978
De Jure 134 at 137.
29 R v Lambie [1981] 2 All ER 776 (HL) at 780a–b, by analogy to cheque cards. The bank’s
contractual liability to pay arises against the background of a pre-existing contract between it and
the supplier, in terms of which it undertakes to pay the supplier for goods delivered or services
rendered to the cardholder. See Re Charge Card Services Ltd [1986] 3 All ER 289 (Ch D)
(henceforth Charge Card Services) at 296b–d.
30 D v Cowen & L Gering, Cowen The Law of Negotiable Instruments in South Africa, vol 1, 5th edn
(1985) (henceforth Cowen & Gering, Negotiable Instruments) at 269–270; Stassen, 1978 De Jure
134. Credit cards have only been considered in two South African cases, neither of which sheds
light on this issue: Western Bank Ltd v Registrar of Financial Institutions 1975 (4) SA 37 (T);
Diners Club South Africa (Pty) Ltd v Durban Engineering (Pty) Ltd 1980 (3) SA 53 (A).
31 The creditor will, in any event, most likely be bound contractually as against the card issuer to
honour the card. See Stassen, 1978 De Jure 134 at 140–141; and, Stassen, “Payment by credit
card” (1978) 7 Businessman’s Law 12 at 13.
32 J C Stassen “Payment by credit card – cash or credit?” (1979) 8 Businessman’s Law 183 at 184.
acceptance of a credit card as means of payment, as in the case of a cheque,

is conditional and not a novation of the underlying debt between the
cardholder and merchant unless a novation is clearly intended, and does not
discharge the underlying debt.33 This approach, however, was subsequently
rejected in England in the case Re Charge Card Services Ltd.34 A number of
important principles emerged from the well-reasoned judgment of Millett J:
1. there is no general rule that whenever a method of payment is adopted

which involves a risk of non-payment there is a presumption that it be
35
taken as conditional as opposed to absolute payment;
2. the proper approach, as each new method of payment emerges and its
effect must be considered, is to examine its nature and the surround-
ing circumstances to see whether there should be a presumption of
36
conditional payment;
3. a blind following of principles relating to cheques or letters of credit is
37
inappropriate;
4. in the absence of indications to the contrary payment by credit card is
not conditional for a number of reasons; inter alia, (a) it is typically
used to facilitate payment of small consumer debts on terms which are
not subject to negotiation; (b) the machinery for payment does not
require the address of the cardholder (which would make it difficult
for the service provider to find him); and (c) the terms on which the
supplier is entitled to payment are quite different from those on which
the card issuer is entitled to payment from the customer.38
Scots law appears to be at peace with the Charge Card case.39 The reason-
ing in this case is compelling and it is submitted, despite the earlier academic
opinion to the contrary referred to above, that South African courts are likely
to follow the decision should the matter arise.
As regards payment by letter of credit, this is almost always in pursuance of
an express payment clause in the contract. The legal-tender problem, which
is sometimes present in the case of payment by cheque or credit card, there-
fore does not arise. As regards the effect of the creditor accepting payment by
letter of credit, both the South African and Scots law are almost certainly the
33 Stassen, 1978 De Jure 134 at 136–139; Cowen & Gering, Negotiable Instruments, 270.
34 [1986] 3 All ER 289 (Ch D).
35 At 301f.
36 At 301g.
37 At 301h–303e.
38 At 303h–304b.
39 Walker, Principles, 141.
payment 237
same as that which has developed in the English courts. The leading decision
on the nature of payment by letter of credit is that of the Court of Appeal in
W J Alan & Co Ltd v El Nasr Export and Import Co.40 In his judgment Lord
Denning MR recognised that it was possible in a special case that the creditor
and debtor might have reached an agreement to the effect that the issuing of
the letter of credit would constitute “absolute payment” discharging the debt.41
In the rule, however, it amounted to “conditional payment” which means:
[T]he seller looks in the first instance to the banker for payment: but, if the banker
does not meet his obligations when the time comes for him to do so, the seller can
42
have recourse to the buyer.
So viewed, it must be clear that the underlying debt, as in the case of a cheque,
is not discharged by accepting payment in terms of a letter of credit. There is
no novation. The letter of credit, as in the case of a credit card, gives the
debtor rights against a third party, but, unlike the position in the case of
payment by credit card, if the third party does not perform, the debtor’s
suspended rights in terms of the underlying debt become effective.

The following principles emerge from the foregoing discussion of South
African and Scots law:
1. South African and Scots law both proceed from the basis that, unless
otherwise agreed, a creditor can insist on being paid in legal tender.
However, in both systems, an agreement by the creditor to accept
payment by other common means such as by cheque or credit card is
lightly inferred.
2. Payment by cheque is regarded as conditional, as opposed to absolute,
in both systems. In general terms this means that although the
moment of delivery of the cheque is regarded as the moment of
payment, if the cheque is dishonoured, there has been no payment
and the creditor can sue the debtor either on the cheque or on the
underlying debt.
3. In the more precise analysis of the legal effect of the creditor accep-
ting payment by cheque the two systems may differ, although this is
not entirely clear. Whilst it is clear in South Africa that acceptance of
40 [1972] 2 QB 189 (CA).

41 At 209E–210B.
42 At 210C.
the cheque is not in the rule a novation, there is support in Scotland

for the view that it constitutes a conditional novation.
4. Payment by letter of credit is likely to be regarded as conditional in the
same sense as payment by cheque in both systems.
5. As regards payment by credit card Scottish commentators support the
English Charge Card case (to the effect that such payment is absolute
and discharges the underlying debt). The courts have not yet pro-
nounced on this issue in South Africa. There is academic opinion to
the contrary.
Against this background it is of interest to note two important principles

embodied in PECL. In the first place Article 7:107(1) PECL provides:
Payment of money due may be made in any form used in the ordinary course of
business.
This implies that the debtor may choose the form of payment. The creditor
cannot unilaterally demand payment in a particular form or manner, not even
in legal tender. If the form and manner of payment are important to him, the
43
particular form or manner must be agreed in the contract. However, the
debtor does not have an unfettered choice: the choice must fall within the
“ordinary course of business”. This is necessary in order to protect the
creditor from having to accept a “surprising, unusual or burdensome manner
44
of payment”. There is much to be said for the way in which PECL addresses
45
this matter. The anachronistic nature of the legal-tender requirement still
present in many legal systems in modern times is recognised. The solution
adopted is a better reflection of the commercial reality in an increasingly
cashless society. It is also more satisfactory than the rule adopted in the USA
in terms of which a creditor, when offered payment in some other manner,
can demand payment in legal tender but subject to a reasonable extension of
time to enable the debtor to procure it.46
The second principle is formulated as follows:
A creditor which, pursuant to the contract or voluntarily, accepts a cheque or other
order to pay or a promise to pay is presumed to do so only on condition that it will
47
be honoured.
43 See Comments A and B to Article 7:107 PECL.

44 Comment B to Article 7:107 PECL where the delivery of a vast number of small coins is given as
an example
46 See Note 1 to Article 7:107 PECL.
payment 239
Thus, if a payment instrument such as a cheque, promissory note or letter of

credit48 is dishonoured, there has been no payment. This principle is in
accordance with the principle common to South African and Scots law that
payment by cheque or letter of credit is conditional payment. However,
provided a credit card can be regarded as “a promise to pay”, PECL does not
reflect the Charge Card case. The card issuer having contractually bound
itself as against the provider of services or goods to pay, it is difficult to escape
the conclusion that acceptance of payment in this form is acceptance of “a
49
promise to pay”. Moreover, it would appear from the comments and notes
to Article 7:107(2) PECL that the drafters had a wide interpretation in mind
so as to cover any form of substituted performance. However, in accordance
with the principle, the consequence of accepting substituted performance
merely gives rise to a presumption that the parties intended it to be
conditional. The possibility accordingly remains, on the basis of considera-
tions such as those which led to the Charge Card decision, to argue that there
are sufficient grounds upon which the presumption may be discharged.
The principle of conditionality of acceptance of substituted performance
is further entrenched by the second sentence of Article 7:107(2) PECL
which reads:
The creditor may not enforce the original obligation to pay unless the order or
promise is not honoured.
The use of the words “may not enforce the original obligation” is significant.
This phrase does not support the idea of the original obligation having been
discharged by acceptance of the substituted performance, and then coming
to life again if the substituted performance leads to nothing – i.e. the idea of
the substituted performance constituting a conditional novation. The drafters,
as is also borne out in the comments,50 have in mind the suspension of the
underlying debt until such time as the substituted performance has been
dishonoured. The understanding of conditional payment under PECL is
therefore the same as that of English and South African law. This approach, it
is suggested, is also in accordance with the probable intention of the parties.
48 “Promise to pay”, it is suggested, is wide enough to include payment by documentary credit.

49 This is my impression from a general reading of the Comments and Notes. However, see
specifically Note 2 to Article 7:107(2) PECL which refers by name to payment by credit card.
50 Comment C states “that the original claim subsists until satisfaction of the substituted
performance has in fact been achieved”. This is then illustrated by the following example: “A owes
B £3000. A accepts B’s request to give it a promissory note payable two months later. B’s remedies
on the original contract are suspended until the promissory note is due but revive if the note is
dishonoured”. See also Comment D.
(3) Conclusion
Article 7:107 PECL deserves to be supported. It is clear, and in general
reflects both commercial reality and the probable intentions of the parties. In
doing away with the traditional possibility of requiring payment in legal
tender it is probably prophetic. The solution employed is more advanced
than the law in most countries. Its clear rejection of the idea that the accep-
tance of substituted performance is novatory, by recognising a presumption
to the contrary, is, as a general rule, satisfactory. In the specific instance of
payment by credit card, PECL probably favours an outcome different from
that in the Charge Card Services case. However, it may well be that the
reasoning in that case is compelling enough to rebut the presumption.
C. PAYMENT BY THIRD PARTY
(1) Introduction
In dealing with the form and manner of payment above, it was noted that a
creditor very often does not obtain payment from the debtor directly but
from a third party, in the form of the bank on which a cheque has been drawn,
or the bank that has issued a letter of credit or credit card. In these situations
the creditor typically looks towards the bank for payment in accordance with
an agreement with the debtor that he will do so. However, payment of
another’s debt can also arise in various non-consensual situations. A bene-
factor may, for example, simply pay the debt of a friend without his know-
ledge, or a sub-tenant may pay the rental of the tenant to prevent his eviction,
or a bank acting without mandate may pay a cheque. Such third-party
payments are considered below.

The South African law regarding third-party payments is largely settled. The
Roman–Dutch authorities are pretty uniform. An exposition often encoun-
tered51 is that of Pothier:
It is not essential to the validity of the payment, that it be made by the debtor, or
any person authorised by him; it may be made by any person without such
authority, or even in opposition to his orders, provided it is made in his name, and
in his discharge, and the property is effectually transferred; it is a valid payment, it
51 See B & H Engineering (note 3) at 292F; Froman v Robertson 1971 (1) SA 115 (A) (henceforth
Froman) at 124G; Commissioner for Inland Revenue v Visser 1959 (1) SA 452 (A) at 458A.
payment 241
induces the extinction of the obligation, and the debtor is discharged even against
52
his will.
53
These views have been applied consistently by the South African courts.
Recently, in Info Plus v Scheelke the Supreme Court of Appeal stated “[that]
it is hardly necessary to say that a debt owing by A to B may be extinguished
by a payment made by a stranger to B in discharge of that debt even if A is
unaware of such payment”.54 These views are shared by contemporary
authors.55
Thus, should the payment be subject to the creditor ceding his rights
against the debtor to the third party, the payment was not made with the
56
intention of discharging the debt, and it will accordingly remain intact.
However, payment tendered by a third party on behalf of the debtor with the
57
intention of discharging the debt cannot be refused by the creditor.
Whether the third party will have any claim against the debtor will depend
upon the circumstances. Such a claim may lie in contract (for example where
the third party is a mandatary of the debtor). Claims may also be possible on
58
the basis of negotiorum gestio or enrichment. A problematic question
against this background is whether a bank can recover the amount of a
cheque which it has mistakenly paid to the payee. This question arises, inter
alia, when payment of the cheque was countermanded and the bank
overlooks the countermand.59 The matter has been the subject of a lively
debate in South African law,60 but now seems to have been authoritatively
settled by the judgment of the Supreme Court of Appeal in the B & H
Engineering case. In contrast to the decision of the court a quo, Grosskopf JA
took the view that in this situation one is not dealing with third-party payments
52 R J Pothier, Treatise on the Law of Obligations (1826, transl W D Evans) (henceforth Pothier,
Obligations), para 463. Van der Linden, Institutes, 1.18.1 is virtually identical. See also Voet,
Commentarius, 46.3.1; Van Leeuwen, Censura Forensis, 1.4.32.3.
53 Reliance Agencies (Pty) Ltd v Patel 1946 CPD 463 at 472–473; Froman (note 51) at 124F–H; Info
Plus v Scheelke 1998 (3) SA 184 (SCA) at 192D.
54 1998 (3) SA 184 (SCA) at 192D.
55 Van der Merwe et al, Contract, 492–493; Lubbe & Murray, Contract, 705–706 n 2; Christie,
Contract, 472.
56 Van der Merwe et al, Contract, 492; Shaw v Burger 1994 (1) SA 524 (C); HK Outfitters (Py) Ltd
v Legal & General Assurance Society Ltd 1975 (1) SA 55 (T); cf also Pothier, Obligations, para
464; Christie, Contract, 472.
57 Pothier, Obligations, para 464. The test according to Pothier is whether the payment is in the
interest of the debtor. If it is, it must be accepted. If it is not (as in the case of payment subject to
cession), it need not be accepted.
58 Van der Merwe et al, Contract, 493.
59 It can also arise when the bank pays a forged cheque: see Malan & Pretorius, Bills of Exchange,
para 210.
60 For an excellent historical overview see Malan & Pretorius, Bills of Exchange, para 210.
as contemplated by the Roman-Dutch commentators, or, as he terms it, the

“Pothier argument”:61
[T]he bank is not the drawer’s agent, but a neutral payment functionary. It is
consequently correct that the acts and intent of the bank, by themselves, cannot
result in the payment of the debt owed to the payee. However, the acts and intent
of the bank form only a part of the picture. They must be seen in the light of the
debt-extinguishing agreement between the debtor and creditor. It is that
agreement which defines the purpose for which the cheque is given, and for which
payment is to be received from the bank. If that agreement provides that any
payment by the bank, even an unauthorised one, would discharge the debt as
between debtor and creditor, such an agreement would be valid inter partes. The
fact that the bank does not know or care what the purpose of its payment is does
not matter. Its function is neutral, almost mechanical. It performs the act which
the parties have agreed would serve to complete the payment of the debt. It
follows that the above passage of Pothier is not relevant in the present
circumstances. We are not here dealing with a case where the bank pays somebody
else’s debt. In our case the debtor is paying his own debt through the
62
instrumentality of the bank.
Whether the unauthorised payment of the cheque has discharged the
underlying debt therefore depends upon the debt-extinguishing agreement
between the debtor and creditor. Here the agreement is normally that the
underlying debt is extinguished on payment of the cheque irrespective of
whether the payment has been authorised. Therefore the payment of the
countermanded cheque discharges the underlying debt which implies that
the creditor (or payee of the cheque) is not enriched by this payment. Due to
the absence of enrichment, the bank cannot not succeed with a condictio sine
63
causa to recover the unauthorised payment.
(3) Scots (and some English) law

64
Apart from a recent contribution by MacQueen, payment by a third party does
not appear to have attracted much attention in Scots law. There is a considerable
similarity between the opinions of some of the Scottish Institutional Writers
and their Roman–Dutch counterparts. Bankton states the rule as follows:
[P]ayment may be made for one that is ignorant of it, or even against his will,
65
because he cannot hinder the creditor to take his payment where he can find it.
61 1995 (2) SA 279 (A) at 292E.

62 At 293E–G.
63 At 291F, 294G–J. In arriving at this conclusion the court expressly distanced itself from the
judgment of Goff J in Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1979] 3 All
ER 522 (QB). See also Govender v Standard Bank of South Africa Ltd 1984 (4) SA 392 (C).
64 MacQueen, in Johnston & Zimmermann, Unjustified Enrichment, 458, 470–471.
65 Bankton, Institute, 1. 24.1.
payment 243
Bell is slightly more expansive:

Payment, to the effect of extinguishing the obligation, may be made not only by
the debtor himself, but by anyone acting for the debtor: or even by a stranger,
where the debt is pecuniary, and due, and demanded; or where any penal effect
may arise from delay; or where the creditor has no interest in demanding
66
performance by the proper debtor.
The early Scots authorities, however, are not uniform. Some take the view,
which prevails in England, that third-party payment does not discharge a
67
debt unless ratified by the debtor.
There is also little on this topic in the modern Scottish texts. Walker states
that payment by a third party on behalf of the debtor is valid, even if made
without the debtor’s knowledge or consent.68 In the Stair Memorial Encyclo-
paedia a preference is expressed for the view that the unauthorised payment
of a debt by a third party discharges the debt.69 Gloag, with reference to early
case law,70 states that a creditor who is not taking active steps to enforce his
debt, is not bound to accept payment from any person other than the debtor
or someone having his authority. Should he, however, be taking measures to
enforce payment, or to realise securities, “he is bound to accept payment and
to grant an assignation to anyone who can show an interest to intervene, such
as a friend of the debtor, or a postponed bondholder in subjects conveyed in
71
security”. In coupling the obligation to accept payment by an interested
stranger to assignation, it would appear that Gloag does not have a debt-
extinguishing situation in mind. Scottish case law on this topic is sparse. One
case holds that where a third party had paid the debt of another owed to a
bank, the debtor’s obligations to the bank were discharged, and that Scots
72
law, in this regard, was Civilian in character. MacQueen’s conclusions that
the Scots law in this regard is “remarkably unclear”73 or “at best undeveloped”74
appears to be apposite.
It is of interest that the Notes to PECL express the view that, as regards
66 I rely here on MacQueen, in Johnston & Zimmermann, Unjustified Enrichment at 470.

67 See MacQueen, in Johnston & Zimmermann, Unjustified Enrichment, 470, who refers to Lord
Kames, Principles of Equity, 5th edn (1825), 330, 331; and to Hume, Lectures, vol 3, 16, 17.
68 Walker, Contract, para 31.29.
69 SME, vol 15, para 97.
70 Smith v Gentle (1844) 6 D 1164; Cunningham’s Trustees v Hutton (1847) 10 D 307; Fleming v
Burgess (1867) 5 M 856.
71 Contract, 710. See also Walker, Principles, vol 2 at 140.
72 See MacQueen, in Johnston & Zimmermann, Unjustified Enrichment, at 470, referring to Reid v
Lord Ruthven (1918) 55 SLR 616.
73 MacQueen, in Johnston & Zimmermann, Unjustified Enrichment at 470.
payment by third-parties, Scots law is “probably the same” as English law.75

In the light of the above discussion, this statement is somewhat surprising. In
English law the rule of “vicarious performance” is that the creditor may not
refuse performance tendered by a third party if the third party performs on
behalf of the debtor and with his prior authority or subsequent ratification.76
This type of payment will discharge the debt. Third-party payments that are
unauthorised will, however, not discharge the debt. This rule rests on two
77
early cases. In Belshaw v Bush it was held that a payment by a stranger for
the debtor and on his account, which was subsequently ratified by him, is a good
78
payment, while in James v Isaacs the principle was established that payment
by a stranger without the authority, prior or subsequent, of the debtor was bad.
A consolidated rule was formulated as follows in Simpson v Eggington:
The general rule as to payment or satisfaction by a third party, not himself liable as
co-contractor or otherwise, has been fully considered in the cases of …; and the
result appears to be, that it is not sufficient to discharge a debtor unless it is made
by the third person, as agent, for and on account of the debtor and with his prior
79
authority or subsequent ratification.
80
A detailed analysis of the complex English law in this regard falls outside the
81
scope of this contribution. The main difference between English and South
African law is clearly that whereas an unauthorised third-party payment can
extinguish the debt in South Africa (the typical position in the Civilian
tradition), it does not in English law. The uncertainty in Scotland must be
ascribed to the mixed nature of Scots law – in this case much more visible
than in South Africa.
82
In evaluating the Civilian and English approaches MacQueen advances
three reasons for preferring the Civilian rule. First, there is the practical
reason that a creditor who has been paid by a third party is not likely to seek
payment again from the debtor: “[H]aving got his money, he will normally
75 See Note 2(b) to Article 7:107 PECL. Professor MacQueen advises me that this note was drafted
in the mid-1990s before he had fully addressed his mind to the problems involved.
76 S Whittaker, “Performance of another’s obligation: French and English law contrasted”, in
Johnston & Zimmermann, Unjustified Enrichment, 433, 445–446; Treitel, Contract, 755–756;
Chitty, para 22-041.
77 (1851) 11 CB 191 (138 ER 444). For a discussion of the case see P Birks & J Beatson,
“Unrequested payment of another’s debt” (1976) 92 LQR 188 at 189–191.
78 (1852) 22 LJCP 73; 12 CB 791 (138 ER 1115).
79 (1855) 10 Ex 845 at 847 (156 ER 683 at 684). See also Smith v Cox [1940] 2 KB 558 at 560.
80 Whittaker, in Johnston & Zimmermann, Unjustified Enrichment at 447.
81 For detailed expositions and debate regarding this matter, see Birks & Beatson (1976) 92 LQR
188; D Friedman, “Payment of another’s debt” (1983) 99 LQR 534.
payment 245
rest content.” Secondly there is the systematic reason that it would align
Scots law with the other systems in the Civilian tradition. Finally, MacQueen
argues that there is more clear authority for the Civilian rule in Scotland, than
for the English rule. However, he subjects his preference to one reservation:
the Civilian rule appears to be inappropriate to determine the question
whether a bank paying a stopped cheque thereby discharges the underlying
debt. In this regard he prefers the English rule.
The effect of payment by a bank of a stopped cheque in English law was
considered in detail by Goff J in Barclays Bank Ltd v W J Simms Son &
83
Cooke (Southern) Ltd. In this case the bank was successful in recovering
such a payment from the payee on the basis that since the payment was
unauthorised, it did not discharge the debt. The payee was accordingly
enriched and liable to the impoverished bank in restitution. Unlike the stance
taken by Grosskopf JA in the South African B & H Engineering case, it is clear
that Goff J regarded payment of a cheque by a bank as third-party payment.
For this reason, on application of the English law relating to vicarious
payments, it can only discharge the debt if it has been authorised, i.e. if the
bank has paid within its mandate. A bank paying a stopped cheque therefore
does not pay within its mandate and does not discharge the debt. The
recipient of the payment is accordingly enriched and liable to the bank in
restitution, at least in the absence of a change of position defence.84
MacQueen, having reviewed the South African law as well, regards the
85
Barclays Bank case as good law also in Scotland. His preference for the
Barclays Bank approach is based on policy considerations. He argues that the
bank paying on a countermanded cheque is paying without instruction;
therefore it must be very dubious whether in the circumstances the
customer’s debt can be properly treated as discharged by the bank’s payment.
MacQueen points out that the reason for the countermand is often some
claim which the drawer customer wishes to make against the payee of the
cheque in the underlying relationship in which the cheque constitutes
payment. The withholding of payment by this route is a useful and legitimate
pressure tactic towards obtaining proper performance of the payee’s obli-
gation. The drawer’s position would be even more problematic if, in addition
to losing his effective remedy, it was also subject to the bank’s claim in respect
of its impoverishment (as suggested in the B & H Engineering case86).
83 [1979] 3 All ER 522 (QBD).

84 At 539b–g.
85 MacQueen, in Johnston & Zimmermann, Unjustified Enrichment at 477–478.
86 1995 (2) SA 279 (A) at 295A

The foregoing discussion discloses two main issues of interest from a
comparative perspective:
1. Payment by a third party discharges the debt irrespective of whether it

has been authorised by the debtor in South African law. This differs
from the English rule in terms of which the debtor must either
authorise or ratify the payment for it to discharge the debt. The position
in Scots law is uncertain, but is probably the same as in South Africa.
2. It would appear that South African and Scots law differ on the com-
petence of an enrichment claim (or claim in restitution) by a bank that
has paid a countermanded cheque. South African law disallows such a
claim against the payee on the basis that the payee is not enriched (as
the drawer’s indebtedness to the payee has been discharged by the
payment). A Scottish commentator, on the other hand, favours the
English approach which allows such restitution.
Against this background it is interesting to note that PECL clearly opts for
a via media. It differentiates between two categories of third parties. The first
87
category consists of any third party who “acts with the assent of the debtor”
as well as a “third person [who] has a legitimate interest” in timeous per-
88
formance of the debt. Any other third party falls into the second category.
As regards performance by third parties falling into the first category, PECL
identifies two consequences: (1) the creditor cannot refuse performance by
such a third party; and (2) such performance discharges the debt. These rules
apply unless the contract requires “personal performance”89 i.e. payment by
the debtor himself – which is unlikely.90 PECL has no provision as to the
consequences of performance tendered by a third party falling within the
second category, which is accepted by the creditor.91
The competence of performance by a third party with the assent of the
debtor, i.e. by an authorised third party, is in accordance with the law of all
87 See Article 7:106(1)(a) PECL.

88 See Article 7:106(1)(b) PECL which reads: “The third person has a legitimate interest in
performance and the debtor has failed to perform or it is clear that it will not perform at the time
performance is due.”
89 See the proviso to Article 7:106(1) PECL.
90 Contracts requiring personal performance typically relate to a different type of performance than
payment, namely for the rendering of personal services such as the painting of a portrait, where
the personal skill of the debtor is important to the creditor. See Comment D to Article 7:106
PECL.
91 See Comment D to Article 7:106 PECL.
payment 247
the jurisdictions reviewed above.92 The via media of PECL accordingly

consists in the recognition of effective payment by an unauthorised third
party, but only in some cases, namely where the third party has a legitimate
interest. In their comments the drafters give the following examples:
A surety pays a debt in order to avoid costly proceedings against the debtor which
eventually the surety will have to pay. The tenant pays the mortgage in order to
avoid a forced sale of the property. In the interests of the family, a wife pays the
debt of her husband for which she is not liable. A parent company pays the debt of
93
its subsidiary to save the latter’s credit rating.
94 95
This differs from Pothier’s view, which may have the support of Bell,
according to which the creditor cannot refuse payment by a third party if
such payment would be in the debtor’s interest (as opposed to the third
party’s interest).
Finally, it should be noted that PECL does not attempt to address the
possibility of enrichment claims of the third party who has paid against the
debtor. This is understandable in view of the fact that the question is not one
concerning contract law. However, in ascribing to certain third-party pay-
ments the consequence of the debt being discharged, PECL would have an
impact upon the question of whether an unjustified enrichment claim may
have to be granted.
(5) Conclusion
The law relating to third-party payments differs substantially in different
countries, and in some, including Scotland, it is rather unclear. To draft prin-
ciples for European contract law on this matter must necessarily be difficult.
The via media adopted here appears to me to be a reasonably practical
solution. It has, however, simply avoided some difficult questions, especially
as to the effect of an unauthorised payment by a disinterested third party that
has been accepted by the creditor. Apart from the fact that PECL clearly
diverges from the strict English rule, it does not appear to have a striking
resemblance to the law of either South Africa or Scotland.
92 See Note 1 to Article 7:106 PECL which states that although “expressed differently” in different
legal systems, all legal systems “seem to agree” on this principle.
93 Comment B to Article 7:106 PECL. Another obvious example would be where the sub-tenant
pays the rental owed by the tenant to prevent the eviction of the tenant.
95 See the text above at note 68 where the competence to pay arises, inter alia, “where any penal
effect may arise from delay”. It appears to me that this penal effect relates to the debtor. It can,
however, possibly be interpreted as affecting the third party.
D. FINAL REMARKS
South African and Scots law have a mixed character which, in both cases, they
have developed over a long period of time. This has been well documented in
96
two substantial works that have been published in the past decade. PECL
obviously also have a mixed character. However, the manner and process by
which this mix has come to fruition are very different from what happened in
Scotland and South Africa. In conclusion one might ask the question posed
by Zimmermann, Visser and Reid, the editors of Mixed Legal Systems in
Comparative Perspective: whether, in comparing the Scots and South African
law with PECL, we find either the “comfort of corroboration” in similarity, or
a “cause for reflection” in difference.97
In applying this question specifically to the payment issues considered
above, two difficulties emerge: first, the mixed nature of South African law is
not really evident on these points – its principles are very much Civilian; and,
secondly, although Scots law shows clear signs of English legal influence, this
has not resulted in a blend but has led to uncertainty as to what the law
actually is. A more interesting question, against this background, may be
whether PECL can serve as a fertile source for the future development of
South African and Scots law. I believe that the way in which PECL has dealt
with modern methods of payment constitutes a useful model for legislation
both in Scotland and South Africa. In Scotland, where the effect of
unauthorised third-party payments is still uncertain, PECL may well be
influential in future cases. From a South African perspective, one might in
the light of PECL reflect on whether unqualified acceptance of the rule that
payment by a third party discharges the debt, is sensible.
96 See Zimmermann & Visser, Southern Cross; Reid & Zimmermann, History.
97 Reid & Zimmermann, History, preface.
10 Specific Performance and
Special Damages
Sieg Eiselen
A. INTRODUCTION
B. SPECIFIC PERFORMANCE
(1) Introduction
(a) Roman and Roman-Dutch law
(b) South African law
(3) Scots law
(4) Articles 9:101 and 9:102 PECL
(5) Comparative conclusion
C. SPECIAL DAMAGES OR REMOTENESS OF DAMAGES
(1) Introduction
(3) Scots law
D. CONCLUSION
A. INTRODUCTION
The interplay and differences between Common Law and Civil Law in mixed
legal systems are illustrated very clearly in two remedies commonly available
after a breach of contract, namely specific performance, or specific
implement, and the rules relating to special damages. Specific performance
provides an instance where the Civil Law and the Common Law depart from
directly opposing points of view. In Civil Law specific performance is
regarded as the natural remedy after breach, whereas in Common Law it is
regarded as exceptional, with damages being the prime remedy.
The rules on special damages, on the other hand, provide an instance
where there is a large measure of convergence between Common Law and
249
Civil Law, due to the pervasive influence of Pothier in this field. The
comparison of these two remedies of South African and Scots law provides an
interesting backdrop for a consideration of the relevant provisions of PECL.
B. SPECIFIC PERFORMANCE
(1) Introduction
The issue of specific performance seems to draw a very definite dividing line
between the Common Law and Civil Law traditions.1 During the drafting
process for CISG the question of specific performance presented an obstacle
2
on which no consensus could be reached. It resulted in a compromise which
3
preserved the autonomy of the lex fori to apply its own specific rules.
It is generally said that the point of departure in the Civil Law systems is
that a party is in principle entitled to have its contract enforced as agreed
unless there is some equitable reason for denying it such relief, whereas in
English law the creditor is entitled to damages as the primary remedy for a
breach of contract unless there is some equitable reason for granting it in
4
equity. The validity of these axioms will be discussed below in order to
evaluate the approach followed in Articles 9:101 and 9:102 PECL.

In Roman law a court was not entitled to make an order forcing a party to
deliver a thing or to do something in terms of a contract. All claims in contract
were claims for the payment of money. If the contract required a party to
render performance other than payment of money, a court could only grant a
5
claim for damages upon default.
Although some writers of the Roman-Dutch law repeated the Roman law
position, there seems to be little doubt that the majority of the writers
1 Joubert, Contract, 224; De Wet and van Wyk, Kontraktereg, 190; Christie, Contract, 605–606;
PECL, vol 1, 399.
2 See U Huber in P Schlechtriem, Commentary on the UN Convention on the International Sale of
Goods (CISG) 2nd edn (1998) (henceforth Schlechtriem, CISG), Article 28 n 5 at 200.
3 See Article 28 CISG; Huber in Schlechtriem, CISG, Article 28 n 5 at 200 .
4 Joubert, Contract, 224; PECL, vol 1, 395; A Cockrell, “Breach of contract” in Zimmermann &
Visser, Southern Cross, 325; Treitel, Contract, 926; MacQueen & Thomson, Contract, para 6.6; H
L MacQueen & L J Macgregor “Specific implement, interdict and contractual performance”
(1999) 3 Edinburgh LR 239.
5 Zimmermann, Obligations, 770–772; cf Joubert, Contract, 223; De Wet & Van Wyk,
Kontraktereg, 189.
specific performance and special damages 251
accepted that courts had the power to order specific performance.6 This
happened under the influence of Germanic law which granted the non-
defaulting party a choice as to whether it wanted to claim compliance in
forma specifica or whether it would be content with damages.7 This power
was subject to two exceptions, namely instances where the performance had
become impossible and where the estate of the debtor had been sequestrated.8

The divide between the majority Roman-Dutch approach and the English
approach became evident from early on in the case law, where there were two
9
clear camps. In the cases which followed the English approach, the sub-
rules of the equitable discretion exercised by English courts were introduced
into South African law. These cases referred to English cases to refuse specific
10
performance where it would be unjust, where the court was unable to en-
11 12
force such an order, where damages would be an adequate remedy, or in
13
cases of employment.
Cases in the Roman-Dutch camp rejected the relevance of the English
cases, relying on the majority point of departure of the Roman-Dutch law
that a party is in principle entitled to specific performance, except in cases of
impossibility and insolvency.14 This insistence can partly be ascribed to the
emphasis in South African law on the principle of pacta sunt servanda.15
This dichotomy in the approaches to the remedy of specific performance
introduced a tension into the judgments on this remedy, even amongst those
6 Joubert, Contract, 223–224; De Wet & Van Wyk, Kontraktereg, 189; Cockrell, in Zimmermann &
Visser, Southern Cross.
7 De Wet & Van Wyk, Kontraktereg, 189.
8 Joubert, Contract, 224; De Wet & Van Wyk, Kontraktereg, 189.
9 Cockrell, in Zimmermann & Visser, Southern Cross, 326–327.
10 Atkinson v Vause’s Executors (1892) 13 NLR 85; Pauline Colliery and Developing Syndicate v
Natal Land and Colonisation Co Ltd (1902) 23 NLR 166.
11 Ingle Colonial Broom Co Ltd v Hocking 1914 CPD 495; Barker v Beckett & Co Ltd 1911 TPD
151; Christie, Contract, 615; Cockrell, in Zimmermann & Visser, Southern Cross, 327.
12 Visser v Neethling 1921 CPD 176; Cockrell, in Zimmermann & Visser, Southern Cross, 327.
13 Schierhout v Minister of Justice 1926 AD 99 at 108; Christie, Contract, 613–614.
14 Norden v Rennie (1879) Buch 155; Cohen v Shires, McHattie and King (1882) 1 SAR 41; Van der
Westhuizen v Velenski (1898) 14 SC 237; Fick v Woolcott & Ohlsson’s Cape Breweries 1911 AD
214; Farmer’s Co-operative Society (Reg) v Berry 1912 AD 343; Amoils v Amoils 1924 WLD 88 at
98; Shill v Milner 1937 AD 101; J W Wessels, The Law of Contract in South Africa, 2nd edn by A
A Roberts (1951), § 3122; De Wet & Van Wyk, Kontraktereg, 189; Joubert, Contract, 223;
Christie, Contract, 607–608.
15 See Wells v SA Alumenite Co 1927 AD 69; Brisley v Drotsky 2002 (4) SA 1 (SCA) at 27; and esp
Basson v Chilwan 1993 (3) SA 742 (A) at 777A-B; Santos Professional Football Club (Pty) Ltd v
Igesund 2003 (5) SA 73 (C) at 86–87.
judges who adhered to the Roman-Dutch point of view. The English-orientated

cases departed from the point of view that courts had an overriding discretion
to refuse specific performance, as the remedy was exceptional rather than
one a party was entitled to as of right, which represented the Roman-Dutch
point of view. This eventually resulted in the decision in the Berry case16 in
1912, in which the Appellate Division stated that the aggrieved party had a
right to specific performance, but that that right was subject to the discretion
of the court. This represented a fusion of the Roman-Dutch and English
positions. Due to the structurally anomalous nature of this decision, there was
17
no uniformity of approach in the decisions that followed. This position was
18
reaffirmed in the Haynes case, which remained the leading case on this remedy
for many years. The decision did, however, leave some uncertainties as a result
19
of its reference to English authorities and rigid rules. These uncertainties
20
were cleared up to some extent by the decision in the Benson case in 1986.
Here the court held that there is no doubt in South African law that the
aggrieved party has a right to specific performance, but that this right is
limited by considerations of equity or justice.21 It rejected any notion that the
right should be limited by rigid rules which would curtail the court’s discre-
tion and erode the right to specific performance.22 Hefer JA also rejected any
need for the use of the English categories where specific performance would
be refused, as had been done in some earlier cases.23 Cockrell quite correctly
indicates that despite trying to re-establish the Roman-Dutch position, the
court has simply perpetuated the internal incoherence in this area of the law,
24
occasioned by the fusion of the remedy from two dissimilar systems of law.
Joubert distinguishes three different situations concerning specific per-
formance in modern South African law, namely claims for payment of money,
claims to enforce a negative obligation or duty, and claims for some act other
25
than the payment of money.
16 Farmer’s Co-operative Society (Reg) v Berry 1912 AD 343.

17 See Cockrell, in Zimmermann & Visser, Southern Cross, 329.
18 Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (AD).
19 The analysis of this case in Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at
782F–783C can hardly be said to be “strenuous criticism” as claimed by Cockrell, in Zimmer-
mann & Visser, Southern Cross at 329. The court simply cleared up specific uncertainties caused
by the decision.
20 Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A).
21 At 783B–C.
22 At 782H–783C.
23 At 785C–G.
24 Cockrell, in Zimmermann & Visser, Southern Cross, 330.
25 Contract, 222–224; Christie, Contract, 606–607.
A claim for the payment of money due under the contract is strictly speak-
ing a claim for specific performance, although this term has become reserved
for those instances where performance of a non-monetary obligation is
claimed.26 Joubert is of the opinion that although some courts have refused to
order specific performance relying on the judicial discretion to refuse such
orders, 27 these cases must be seen as an aberration.28 According to him courts
have no discretion to refuse specific performance for the payment of money.
However, the case law on which he relies does not bear this out.
29 30
In the Anastassiou case to which Joubert refers, the issue of the court’s
31
discretion to refuse specific performance was expressly raised. Davidson J
32
reviewed the leading cases dealing with this issue in order to establish the
33
circumstances under which the court may refuse to exercise its discretion.
There is no indication that the court regarded its discretion as fettered in the
case of the payment of money.
Where a contract contains a negative obligation (i.e. where the debtor
promises not to do something), the creditor is entitled to an order restraining
the debtor from performing that act.34 The usual remedy of the creditor is to
obtain an interdict restraining the debtor from breaching its obligations. The
creditor must prove the usual requirements for an interdict, namely a clear
right, a threat of interference with that right and the absence of similar
protection by any other remedy.35
The enforcement of restraints of trade provides by far the most common
occasion where negative obligations arise. Although the early South African
cases followed English law in regarding restraints of trade as being prima
26 Joubert, Contract, 222; Christie, Contract, 606–607. See also Gibson v Woodhead Plant Ltd 1918
AD 308.
27 Manasewitz v Oosthuizen 1914 CPD 328; Carpet Contracts (Pty) Ltd v Grobler 1975 (2) SA 436
(T).
28 Joubert, Contract, 222; Industrial & Mercantile Corporation v Anastassiou Bros 1973 (2) SA 601
(W).
29 Industrial & Mercantile Corporation v Anastassiou Bros 1973 (2) SA 601 (W).
30 Joubert, Contract, 222.
31 At 606 ff.
32 Shakinovsky v Lawson & Smulowitz 1904 TS 326; Farmers Co-operative Society (Reg) v Berry
1912 AD 343; Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (AD); R v Milne and
Erleigh (7) 1951 (1) SA 791 (AD).
33 See at 607–609.
34 Wessels, Contract, § 3139 ff; Joubert, Contract, 223. The remarks in Longhorn Group (Pty) Ltd
v The Fedics Group (Pty) Ltd 1995 (3) SA 836 (W) at 843C–D, that this type of relief is not
specific performance, are hard to explain or understand.
35 Setlogelo v Setlogelo 1914 AD 221 at 227; L T C Harms, “Interdict”, in LAWSA, vol 11, First
Reissue (1998) at 288. The requirement of irreparable harm as stated by Joubert, Contract, 223 is
not correct.
facie void, thus placing the onus to prove reasonableness on the applicant,36
the position was fundamentally changed in the Magna Alloys case.37 The
onus is now on the party under restraint to prove that the restraint is
unreasonable.38 The other party is therefore entitled in principle to a strict
adherence of the contract.39
The focus in the restraint cases has interestingly shifted from the general
enquiries for the granting of an interdict to the issue of legality and reason-
40
ableness. In the Basson case Botha JA remarked:
The effect of it in practical terms is this: the covenantee seeking to enforce the
restraint need do no more than to invoke the provisions of the contract and prove
the breach; the covenantor seeking to avert enforcement is required to prove on a
preponderance of probability that in all the circumstances of the particular case it
will be unreasonable to enforce the restraint; if the Court is unable to make up its
mind on the point, the restraint will be enforced. The covenantor is burdened with
the onus because public policy requires that people should be bound by their
contractual undertakings. The covenantor is not so bound, however, if the
restraint is unreasonable, because public policy discountenances unreasonable
restrictions on people’s freedom of trade.
It would seem that the usual requirements for an interdict have simply
been subsumed in the four requirements set out in the Basson case:41 namely
(1) does the covenantee have an interest deserving of protection; (2) is that
interest being prejudiced; (3) if so, how does that interest weigh up against
the interest of the covenantor not to be economically inactive or unpro-
ductive; and (4) is there any other issue of public policy which requires the
restraint to be enforced or disallowed? If these questions are answered in
favour of the covenantee the restraint will be enforced. There is no reference
to the usual exclusions when considering the enforcement of claims for
specific performance as set out below.
In all other cases of claims for specific performance relating to non-
monetary obligations, it has been accepted that a party is in principle entitled
to an order for specific performance as the point of departure, but that there
36 Katz v Efthimiou 1948 (4) SA 603 (O); Durban Rickshas Ltd v Ball 1933 NPD 479 at 493; Rogaly
v Weingartz 1954 (3) SA 791 (D) at 792G; Cowan v Pomeroy 1952 (3) SA 645 (C) at 649; Arlyn
Butcheries (Pty) Ltd v Bosch 1966 (2) SA 308 (W) at 309H.
37 Magna Alloys and Research (SA) Pty Ltd v Ellis 1984 (4) SA 874 (A). See also Sunshine Records
(Pty) Ltd v Frohling 1990 (4) SA 782 (A); Basson v Chilwan 1993 (3) SA 742 (A) at 767E–I.
38 Magna Alloys and Research (SA) Pty Ltd v Ellis 1984 (4) SA 874 (A) at 893A–B, 898C–D; Basson
v Chilwan 1993 (3) SA 742 (A) at 768D–E; Christie, Contract, 422; Kerr, Contract, 211–212.
39 Basson v Chilwan 1993 (3) SA 742 (A).
40 At 776I–777B.
41 Basson v Chilwan 1993 (3) SA 742 (A) at 767G–H.
are some limitations which may restrict that right.42 The principle was clearly
stated in the Berry case by Innes JA:43
Prima facie every party to a binding agreement who is ready to carry out his own
obligation under it has a right to demand from the other party, so far as it is
possible, a performance of his undertaking in terms of the contract. As remarked
by KOTZÉ, C.J., in Thompson v Pullinger, 1 O.R. at p. 301, “the right of a plaintiff
to a specific performance of a contract where the defendant is in a position to do
so is beyond all doubt”. It is true that Courts will exercise a discretion in
determining whether or not decrees of specific performance should be made.
They will not, of course, be issued where it is impossible for the defendant to
comply with them. And there are many cases in which justice between the parties
can be fully and conveniently done by an award of damages. But that is a different
thing from saying that a defendant who has broken his undertaking has the option
to purge his default by the payment of money. For in the words of Storey, Equity
Jurisprudence, sec. 717 (a), “it is against conscience that a party should have a
right of election whether he would perform his contract or only pay damages for
the breach of it”. The election is rather with the injured party, subject to the
discretion of the Court.
Courts will refuse to order specific performance outright in two cases, namely
where performance is impossible and where the estate of the debtor is in
sequestration.44 The rationale for the second instance is that the claim by the
creditor is simply a personal right or obligation and therefore it cannot jump
the queue in a sequestration by obtaining an order for specific performance.
The creditor must make his claim against the insolvent estate along with all
45
other concurrent creditors.
The rationale for the first exception is quite clearly the principle of lex non
cogit ad impossibilia courts will not order something which is impossible to
perform, even if such impossibility is subjective, i.e. if it is impossible for the
46
specific creditor to perform, but not impossible in general. Thus, where a
party has sold the same object to two different parties and delivered it to the
42 Joubert, Contract, 223–224.
43 Farmers Co-operative Society (Reg) v Berry 1912 AD 343 at 350. See also Norden v Rennie
(1879) Buch 155; Cohen v Shires, McHattie and King (1882) 1 SAR 41; Van der Westhuizen v
Velenski (1898) 14 SC 237; Fick v Woolcott & Ohlssons’s Cape Breweries 1911 AD 214; Shill v
Milner 1937 AD 101; Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (AD) at 378G;
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 782F–783C; Wessels,
Contract, § 3122; De Wet & Van Wyk, Kontraktereg, 189; Joubert, Contract, 223; Christie,
44 Ward v Barrett NO 1963 (2) SA 546 (A) at 552–553; Rampathy v Krumm 1978 (4) SA 935 (D) at
941; Joubert, Contract, 224.
45 Ward v Barrett NO 1963 (2) SA 546 (A) at 552–553; Rampathy v Krumm 1978 (4) SA 935 (D) at 941.
46 Shakinovsky v Lawson & Smulowitz 1904 TS 326; Wheeldon v Moldenhauer 1910 EDL 97 at 99;
Rissik v Pretoria Municipal Council 1907 TS 1024; Fick v Woolcott & Ohlsson’s Cape Breweries
Ltd 1911 AD 214; Jacobsz v Fall 1981 (2) SA 863 (C) at 873; Pretoria East Builders CC v Basson
2004 (6) SA 15 (SCA).
second buyer, courts will not order specific performance unless the buyer
knew of the first sale.47 However, where delivery has not yet taken place,
courts will interdict the seller from delivering to the second buyer and will
order specific performance in favour of the first buyer according to the
principle of qui prior est in tempore potior est in iure unless the second buyer
can show a balance of equities in his favour.48 Where a res aliena has been
sold a court will not order specific performance unless the third party had
49
agreed to such sale because it would be a futile order.
It has been recognised from a very early point that although the creditor is
in principle entitled to specific performance, such remedy will not neces-
50
sarily be granted on demand and that it is subject to a judicial discretion.
Although not always explicitly stated in these early cases, it would seem that
the necessity and introduction of such a discretion was heavily influenced by
51
the provisions of English law.
From the outset the Appellate Division made it clear that the discretion to
refuse specific performance was a general judicial discretion and not limited
to a specified numerus clausus of instances. In the Berry case Innes J explained
the discretion as follows:52
It is, however, equally settled law with us that, although the Court will as far as
possible give effect to a plaintiff’s choice to claim specific performance, it has a
discretion in a fitting case to refuse to decree specific performance and leave the
plaintiff to claim and prove his id quod interest. The discretion which a Court
enjoys although it must be exercised judicially is not confined to specific types of
cases, nor is it circumscribed by rigid rules. Each case must be judged in the light
of its own circumstances.
The onus to raise impediments to an order for specific performance rests

53
squarely on the defaulting party.
47 Shakinovsky v Lawson & Smulowitz 1904 TS 326; Wheeldon v Moldenhauer 1910 EDL 97 at 99;
Christie, Contract, 609–610.
48 Pienaar v Van Lill 1928 CPD 299; Campbell v First Consolidated Holdings (Pty) Ltd 1977 (3) SA
924 (W) at 928–929; Miller v Spamer 1948 (3) SA 772 (C); Le Roux v Odendaal 1954 (4) SA 432
(N); Barnhoorn v Duvenhage 1964 (2) SA 486 (A) at 494H–495A; Christie, Contract, 610.
49 Pretoria East Builders CC v Basson 2004 (6) SA 15 (SCA) at 21.
50 Even De Wet, who was generally very much opposed to the influences of English law, conceded
this point, without, however, referring to English law – see De Wet & Van Wyk, Kontraktereg, 189.
51 See, e.g., Thompson v Pullinger (1894) 1 OR 298; Manesewitz v Oosthuizen 1914 CPD 328; Re
Coronation Syndicate 1903 TH 254; R v Milne and Erleigh (7) 1951 (1) SA 791 (AD) at 873;
Wessels, Contract, §§ 3113, 3118, 3119, 136, 3137. See also De Wet & Van Wyk, Kontraktereg,
190; Cockrell, in Zimmermann & Visser, Southern Cross, 328–330.
52 Farmers’ Co-Operative Society (Reg) v Berry 1912 AD 343 at 350. This dictum was confirmed in
Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (AD) at 378G; Benson v SA Mutual
Life Assurance Society 1986 (1) SA 776 (A) at 782F–783C.
53 Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 442B–443F.
Despite the generality of the judicial discretion, a number of specific

instances where courts will consider the refusal of specific performance have
been recognised and are discussed in academic writing, namely in the case of
undue hardship, contracts for personal services, imprecise obligations and
agreements to negotiate a contract.54
The suggestion of the English rule, that specific performance should not
55
be ordered where damages would constitute an adequate remedy, was
56 57
rejected in the Berry and Haynes cases. In the Benson case Hefer JA
rejected this proposition on the ground that such a rule would completely
negate the plaintiff’s right to the remedy while unduly restricting the court’s
58
discretion. Rules to the effect that specific performance should be refused
59
where ordinary goods or chattels are sold, or shares which are on the daily
60 61
market, were similarly rejected. All three of these rules which exist in
English law therefore form no part of South African law.
Courts will refuse to order specific performance where the order will
cause undue hardship to the defaulting party or even third parties as was the
case in the Haynes decision.62 In that case Haynes asked for an order com-
pelling the municipality to release a fixed amount of water during a period of
severe drought. Haynes did not provide any evidence that he would suffer
hardship or damages due to not receiving such water, while the municipality
and the community of Kingwilliamstown would suffer undue hardship. The
relevant instances were summarised by the court63 as being those
where the [order for specific performance] would operate unreasonably hardly on
the defendant or where the agreement giving rise to the claim is unreasonable, or
where the decree would produce injustice, or would be inequitable under all the
circumstances.
54 Christie, Contract, 611–615; Kerr, Contract, 680–682; Wessels, Contract, §§ 3117–3121; Joubert,
55 See Wessels, Contract, § 3136.
56 Farmers’ Co-Operative Society (Reg) v Berry 1912 AD 343 at 351; Haynes v Kingwilliamstown
Municipality 1951 (2) SA 371 (AD) at 378.
57 Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A).
58 At 783G–784C.
59 Wessels, Contract, § 3137.
60 Thompson v Pullinger (1894) 1 OR 298 at 301; R v Milne and Erleigh (7) 1951 (1) SA 791 (A) at
873.
61 At 784B–C.
62 Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (AD) at 378. See also ISEP Structural
Engineering and Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd 1981 (4) SA 1 (A); Benson v
SA Mutual Life Assurance Society 1986 (1) SA 776 (A).
63 At 378H–379A.
In SA Harness Works v SA Publishers Ltd,64 it was held that a publisher was

not entitled to proceed with publishing advertisements where the advertiser
had repudiated the contract. The publisher should have cancelled the
contract and claimed its damages consisting of the loss of profits which was
considerably less than the contract price. This case is probably the high-water
mark of the leniency of the courts in refusing specific performance. The
65
Anastassiou Bros case, on the other hand, probably represents the strictest
approach. In that case the defendant had repudiated its contract for shop-
fitting and had almost immediately employed another person to perform the
work. Here it was held that although an order for specific performance would
cause the defendant some hardship and damages, courts should not be
“supine and spineless” in dealing with contract breakers; specific performance
66
was consequently ordered.
Following English law, it has often been stated that courts will not enforce
67
an agreement for the rendering of personal services or employment. The
reasons offered are that such contracts call for the performance of personal
services of a continuing nature and would therefore be in danger of constant
disputes, which courts are ill equipped to supervise or prevent.
This point of departure was rightly rejected in National Union of Textile
Workers v Stag Packings (Pty) Ltd,68 where the court held that there was no
reason why there should be a departure from the general rule that a party is
entitled to enforcement of its contract, subject to the court’s discretion. The
reasoning that enforcement would be difficult is derived from English law
69
and is not consonant with South African law. Perhaps the most far-reaching
70
decision to date is found in the Igesund case. Here the court held that there
would not be undue hardship or inequity in forcing the coach of a pro-
fessional soccer team to fulfil his obligations in terms of the contract with his
64 1915 CPD 43.

65 Industrial & Mercantile Corporation v Anastassiou Bros 1973 (2) SA 601 (W).
66 At 609.
67 Gracie v Hull Blythe and Co (SA) Ltd 1931 CPD 539; Beeton v Peninsula Transport Co (Pty) Ltd
1934 CPD 53; Rogers v Durban Corporation 1950 (1) SA 65 (D); Ngwenya v Natalspruit Bantu
School Board 1965 (1) SA 692 (W); Haynes v Kingwilliamstown Municipality 1951 (2) SA 371
(AD) at 378; Schierhout v Minister of Justice 1926 AD 99 at 107; Roberts Construction Co Ltd v
Verhoef 1952 (2) SA 300 (W); Wessels, Contract, § 3124; Christie, Contract, 613; Kerr, Contract,
681. Cf Myers v Abrahamson 1952 (3) SA 121 (C).
68 1982 (4) SA 151 (T). See also Chevron Engineering (Pty) Ltd v Nkambules 2004 (3) SA 495 (SCA);
Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C).
69 National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T) at 158. Con-
firmed in ISEP Structural Engineering and Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd
1981 (4) SA 1 (A) at 5B; Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C).
70 Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C).
original club (which he had left in order to coach another club in the same
soccer league). The club could not be denied its ordinary remedy simply
because of the possibility that the coach might no longer perform properly,
which was a factual issue that might, or might not, arise only in the future.71
In terms of section 193 of the Labour Relations Act 66 of 1995 and section
77A(e) of the Basic Conditions of Employment Act, the Labour Court has
the power to make an order of specific performance in relation to contracts of
employment. These provisions further strengthen the direction the courts
have taken since the Stag Packings case.
The third type of case where courts have refused to order specific
performance deals with the enforcement of so-called imprecise obligations.
As Christie points out, there is no sharp dividing line between issues raised by
72
these cases and the enforcement of employment cases. It is on this ground
that specific performance of contracts to form syndicates, partnerships or
companies, to appoint a director, or to repair or insure buildings, has been
73
refused. It would seem that the precedents relied on consist wholly of older
cases heavily influenced by the position and reasoning of English law, and
that the trend in later cases is to enforce contracts rather than rely on the
grounds of imprecision or difficulty in enforcement.74
The decision and reasoning in Ranch International Pipelines (Transvaal)
(Pty) Ltd v LMG Construction (City (Pty) Ltd75 are certainly indicative of
this trend.76 The court pointed out that the granting of the order did not
replace the contract and therefore did not introduce any new difficulties in
deciding whether work had been properly performed. It must be seriously
doubted whether imprecision or difficulty of enforcement will in future be
regarded as sufficient ground for refusing this remedy.
Most recently the Supreme Court of Appeal has confirmed this trend in
77
Southernport Developments (Pty) Ltd v Transnet Ltd. The parties had
concluded a lease agreement which, upon the fulfilment of a particular
71 At 86B–E.
72 Christie, Contract at 615.
73 See Christie, Contract, 615; Wessels, Contract, §§ 3117–3118; De Wet & Van Wyk, Kontraktereg,
190; Kerr, Contract, 680–681.
74 Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG Construction (City (Pty) Ltd 1984 (3)
SA 861 (W) at 880G–881F; Southernport Developments (Pty) Ltd v Transnet Ltd 2005 (2) SA 202
(SCA); Christie, Contract, 615.
75 1984 (3) SA 861 (W) at 880G-881F.
76 See also ISEP Structural Engineering and Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd
1981 (4) SA 1 (A) at 5B; Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C);
Brisley v Drotsky 2002 (4) SA 1 (SCA) at 35.
77 2005 (2) SA 202 (SCA).
suspensive condition, would entitle Southernport to lease the property “on

the terms and conditions of an agreement … negotiated between the parties
in good faith and approved by each of the party’s board of directors”. The
agreement further provided that in the event of the parties failing to reach
agreement, any dispute would be referred to an arbitrator who would resolve
such dispute with final and binding effect. Southernport brought an applica-
78
tion for the enforcement of these terms. On exception the Supreme Court
of Appeal held that because the agreement contained a deadlock-breaking
mechanism, there was no reason why the agreement to negotiate in good
79
faith should not be enforced.
The South African approach to the granting of orders of specific performance
retains its hybrid character, despite attempts to move away from the strong
influence of the English law to its Roman-Dutch roots. On the one hand the
right to specific performance is emphasised, while on the other hand this
right is eroded by a general discretion, on the part of the courts, to refuse the
remedy by the courts, albeit that courts have become increasingly reluctant
to do so. The point of departure is the principle of pacta sunt servanda and
courts will only very hesitantly use their discretion to refuse the remedy.
There are no defined categories of cases other than impossibility and insolvency.
The English exceptions of imprecision of the obligation, obligations for personal
services, damages as a sufficient alternative, or the inability of the court to
enforce its order, all seem largely to have fallen by the wayside. The only real
exception remaining seems to be undue hardship. The discretion remains a
general one unfettered by specific rules. The case law, however, indicates a clear
move away from the exceptions towards the strict enforcement of the contract.
(3) Scots law

A clear distinction is made in Scots law between three remedies aimed at
enforcing the contract after a breach, namely payment, specific implement
80
and interdict. The distinction between payment and specific implement is
important because of the consequences of such decrees. A decree for payment
of money is enforced by diligence which may include arrestment, poinding
and sale, whereas a decree for specific implement is enforced at common law
81 82
by imprisonment. There are, however, now also other statutory alternatives.
78 Paras [1]–[4].
79 Paras [17], [18].
80 MacQueen & Thomson, Contract, para 6.2; McBryde, Contract, para 23–05.
The decree of specific implement is used to enforce positive acts of perform-

ance whereas interdict is used to enforce negative performance, i.e. prohibi-
ting actions. Interdict is not competent if it requires the defender to take
positive steps. Very often a decree to refrain from doing something and a decree
to do something positive simply represent opposite sides of the same coin.
The facts in Grosvenor Developments (Scotland) plc v Argyle Stores Ltd83
provide an interesting illustration of the difficulty of distinguishing between
negative and positive acts. An interdict was sought against tenants for “ceasing
to continue to occupy premises” for certain agreed purposes. The court
regarded the action as one for an order requiring the tenants to stay in
occupation and to carry on business. Consequently the application crave for
84
an interdict was incompetent. The distinction is therefore important for
procedural reasons, requiring the non-defaulting party carefully to consider
85
the remedy it will choose.
In Scots law it is sometimes said that specific implement is the primary or
ordinary remedy in cases of a breach of contract in contrast to English law
where it is an exceptional remedy,86 but it is probably more accurate to say that
the aggrieved party has a choice between the remedies of specific implement
and damages. In practice specific implement is apparently rarely sought and
even more rarely granted.87
The decision in Retail Parks Investments Ltd v The Royal Bank of Scot-
land plc (No 2)88 provides a good example of the difference of approach
89
between Scots and English law. In the Retail Parks Investment case, an
order was sought to force a tenant in a shopping centre to occupy its shop in
the centre and conduct business from it. The tenant was content to pay the
rent but did not want to conduct its business there any longer. The order was
90
granted. In an English case with similar facts the order was refused on the
grounds that in English law the ordinary remedy was damages unless
damages could not adequately compensate the aggrieved party.
83 1987 SLT 738.

84 Subsequently confirmed in Church Commissioners for England v Abbey National plc 1994 SC
651.
85 See N R Whitty, “Positive and negative interdicts” (1990) 35 JLSS 453 for a discussion of the
difficulties in distinguishing between these remedies and applying the relevant rules.
86 MacQueen & Thomson, Contract, para 6.6.
88 1996 SC 227; MacQueen & Macgregor (1999) 3 Edinburgh LR 239.
89 See also Highland and Universal Properties Ltd v Safeway Properties Ltd 2000 SLT 414;
MacQueen & Macgregor (1999) 3 Edinburgh LR 239.
90 See Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1; MacQueen
& Macgregor (1999) 3 Edinburgh LR 239 at 241.
Even though a party is entitled to specific implement as of right, the

enforcement of this right has been subject to judicial discretion since the late
nineteenth century.91 The rule was formulated as follows in Grahame v
Magistrates of Kirkcaldy:92
It appears to me that a superior court, having equitable jurisdiction, must also
have a discretion, in certain exceptional cases, to withhold from parties applying
for it that remedy to which, in ordinary circumstances, they would be entitled as a
matter of course. In order to justify the exercise of a discretionary power there
must be some very cogent reason for depriving litigants of the ordinary means of
enforcing their legal rights.
This dictum seems to suggest that the discretion is rather limited, even to the
extent that it has been remarked that considerations of what is equitable or
not are quite irrelevant.93 The rule has been refined and elaborated, however,
to deal with specific situations when the remedy will be refused, without
limiting the generality of the discretion.94 The remedy may be refused:
1. when the performance is impossible. This logical exception is based

95
on the rule lex non cogit ad impossibilia.
2. when the performance would cause hardship to the defender out of all
96
proportion to the benefit to the pursuer, i.e. is regarded as inequitable;
3. where the subject matter is of no particular significance (no pretium
affectionis) and money compensation would be adequate, i.e. the
performance can reasonably be obtained from another source such as
with generic goods;97
4. where the contract involves personal or intimate relationships (thus, a
contract for employment, a contract to marry, or a contract to enter
98
into a partnership will not be enforced; this rule has come under
91 Grahame v Magistrates of Kirkcaldy (1882) 9 R (HL) 91; MacQueen & Thomson, Contract, para
6.6.
92 (1882) 9 R (HL) 91.
93 Salaried Staff London Loan Co Ltd v Swears and Wells Ltd 1985 SC 189.
94 MacQueen & Macgregor (1999) 3 Edinburgh LR 239 at 240.
95 Grahame v Magistrates of Kirkcaldy (1882) 9 R (HL) 91; MacQueen & Thomson, Contract, para
6.6; McBryde, Contract, para 23-18; Walker, Contract, para 33.21.
96 MacQueen & Thomson, Contract, para 6.6; McBryde, Contract, para 23-22; Walker, Contract,
para 33.21.
para 33.21.
para 33.21. There are also statutory remedies which influence this approach, entitling employees
to be reinstated in certain circumstances. See the Employment Rights Act 1996 in terms of which
an employment tribunal has the power to make an order for reinstatement where an employee
has been unjustifiably dismissed.
scrutiny, however, in some employment cases where interdicts were

granted which had the effect of specific implement,99 apparently
under the influence of English law and statutory measures);100
5. where the decree would be unenforceable101 (the example mentioned
by Walker, i.e. the case of a defender outside of Scotland seems
severely to limit the remedy in respect of contracts with an inter-
national flavour);
6. where the order cannot be formulated specifically enough or where
the act to be performed consists of a general duty to be performed
102
over a long period of time;
103
7. where the obligation is to pay money.
There is some controversy as to what extent the exercise of the discretion
has been influenced by English law and on how readily the courts will resort
104 105
to it. A case such as Macarthur v Lawson does seem to come very close to
the English approach.
MacQueen and Thomson indicate that there is a reluctance on the part of
the courts to decree specific implement because of the sanction of imprison-
106
ment in cases of non-compliance. The effect is that the practical position in
107
Scots law is not all that different from the practical position in English law.
It is therefore usual to couple a request for specific implement with one for
108
damages. Where a court will not grant an order for specific implement, it will
109
normally also not grant a decree of interdict which would have the same effect.
The remedy of interdict is used to enforce a performance which is of a
negative character such as an undertaking not to compete, restraints of trade
or solus ties. Non-compliance, as in the case of specific implement, is simply
by imprisonment. MacQueen and Thomson, however, indicate that much of
the discussion on the problems of imprisonment as sanction for non-
99 Anderson v Pringle of Scotland 1998 SLT 754 and Peace v City of Edinburgh Council 1999 SLT
712.
100 MacQueen & MacGregor (1999) 3 Edinburgh LR 239 at 244-245.
para 33.21.
102 Walker, Contract, para 33.21.
103 McBryde, Contract, para 23–16; Walker, Contract, para 33.21.
104 McBryde, Contract, para 23–15. See, however, Co-operative Insurance Society Ltd v Halfords
Ltd 1998 SC 212 at 229; MacQueen & Macgregor (1999) 3 Edinburgh LR 239 at 242.
105 (1877) 4 R 1134 at 1136.
106 MacQueen & Thomson, Contract, para 6.8. See also the extensive list of circumstances set out
in Walker, Contract, para 33.21.
107 MacQueen & Macgregor (1999) 3 Edinburgh LR 239.
109 Murray v Dunbarton County Council 1935 SLT 39; Walker, Contract, para 33.21.
compliance has overlooked a piece of legislation, namely the Law Reform

(Miscellaneous Provisions) (Scotland) Act 1940, which makes provision for
alternative orders in lieu of imprisonment, such as fines or an order for the
search of moveables. This provides courts with a lot of flexibility in these
cases, which has not yet been adequately realised or exercised.
As in South African law, restraints of trade in Scots law form an important
area for the application of interdicts enforcing negative obligations. Scots law
110
follows English law in this respect of restraints of trade. Based on the
111
dictum in Nordenfelt v Maxim Nordenfelt covenants in restraint of trade
112
are regarded as prima facie unenforceable, but if it can be proven that they
113
are justifiable they can be enforced.
The covenantee has to prove three requirements in order to have a
114
restraint enforced:
1. The covenant must be necessary to protect the legitimate interests of
the covenantee. Mere avoidance of competition is insufficient to
satisfy this requirement.
2. The restraint is reasonable as between the parties. Account must be
taken of the area of the restraint, the duration of the restraint and the
nature of the restriction in order to determine its reasonableness.
3. The restraint must be in the public interest.
Restraints of trade apart, it would seem that Scots law has retained much
of its original character in respect of orders for specific implement. The
influence of English law in expanding the discretionary powers of the courts
is undeniable, but that influence has not changed the point of departure,
namely that the aggrieved party is in principle entitled to choose between
specific implement and damages.

The issue of specific performance is dealt with in Articles 9:101 and 9:102
PECL. The point of departure in both Articles is that the non-defaulting
party is entitled to specific performance, either by payment of the amount
110 McBryde, Contract, paras 19-87, 19-91.

111 [1894] AC 535.
112 The controversy as to whether these contracts are void or merely unenforceable seems to have
been settled in Esso Petroleum Co Ltd v Harpers Garage (Stourport) Ltd [1968] AC 269. See
McBryde, Contract, paras 19-144–19-146.
para 33.21.
114 MacQueen & Thomson, Contract, para 7.7; Walker, Contract, para 12.26.
due under the agreement115 or by performance of the obligation to do

something or to give something.116 This is based on the principle of pacta sunt
servanda.117 The formulation of Article 9:101(1) PECL is wide enough to
include the enforcement of negative obligations such as restraints of trade
although it is not mentioned specifically.118 Specific provision is made for the
case where there has been defective or part performance. The aggrieved
119
party is entitled to have the shortfall or defect remedied.
It is important to note also that a distinction is made in these Articles
between monetary and non-monetary obligations. Although it would perhaps
120
have been possible to consolidate the two provisions, they do recognise
that different considerations come into play when a court is dealing with the
enforcement of these two types of obligations. The distinction and different
treatment leads to greater clarity and ease of application than would have
been the case with a consolidated Article.
In the case of monetary obligations a party is always entitled to specific
performance, i.e. payment of the full amount, and not simply damages, pro-
vided it has itself already performed in full.121 The exceptions in Article
9:101(2) PECL only become relevant in cases where the creditor has not yet
performed in full and it is apparent that the debtor will be unwilling to
receive performance. In that case he is obliged to make a substitute trans-
action if it can be done without significant expense or effort.122 The Com-
ments express the opinion that a creditor will be forced to make a cover sale
123
where commercial usage requires it to do so.
An order to make full payment may also be refused if the payment debtor
can show that to foist performance on him will be unreasonable under the
124
circumstances. In both these cases the payment creditor will be limited to
claiming damages as a result of the breach of the payment debtor.
In the case of non-monetary obligations PECL has opted for the Civil Law

117 PECL, vol 1, 391.
118 PECL, vol 1, 397–398.
119 PECL, vol 1, 395.
120 Both provisions recognise specific performance as the point of departure, subject to certain
exceptions. The exceptions in Article 9:101 PECL could have been subsumed in the exceptions
of Article 9:102 PECL. Article 9:101(2)(a) PECL accords with Article 9:102(2)(d) PECL, and
Article 9:101(2)(b) PECL accords to some extent with Article 9:102(2)(b) PECL.
121 Article 9:101 PECL; PECL, vol 1, 391.
122 PECL, vol 1, 392.
123 PECL, vol 1, 392.
124 PECL, vol 1, 392–393.
approach, namely that the aggrieved party is entitled to specific performance,

bar certain exceptions.125 As a result of the controversial nature of the
remedy, it has been designed to be a compromise.126 The point of departure
accords with the Civil Law tradition, whereas the exceptions limit it to the
extent that it comes quite close to the English approach.127 The biggest
remaining difference is that the adequacy of damages to compensate the
aggrieved party, as applied in English law, is not one of the limitations.
However, the Notes state that the differences between the Common Law
128
and Civil Law in this area are more important theoretically than practically.
The limitations operate strictly. Courts have no discretion to grant specific
129
performance where one of the limitations is present. However, under
limitation (b), which deals with unreasonable expense or effort on the part of
the defaulting party, and exception (d), which refers to “reasonably” making
a substitute transaction, a fair bit of leeway is granted to courts. What is
unreasonable will depend very much on the facts of individual cases and the
130
notions of national courts.
The first limitation, namely that a court will not enforce impossible
obligations, follows for obvious reasons. The Comments seem to suggest that
impossibility refers both to objective and subjective impossibility.131 Thus in
the case of double sales, where the defaulting party has already delivered the
goods to a third party who obtains priority, specific performance will not be
ordered. Cases of commercial impossibility, however, need to be dealt with
under exception (b), i.e. that performance will cause the obligor unreason-
132
able expense or effort.
The exception of unreasonable effort or expense is aimed at dealing with
cases where under the specific circumstances it would be unreasonable to
require the debtor to perform. The Comments quote the example of a ship
which is to be delivered sinking on its way to the place of delivery. The cost of
salvaging the ship being forty times her value, this provides an obvious
instance of commercial impossibility where this exception ought to be
125 PECL, vol 1, 399.

126 PECL, vol 1, 395.
127 PECL, vol 1, 399–400.
128 PECL, vol 1, 400.
129 PECL, vol 1, 396.
130 See the examples quoted in PECL, vol 1, 396, 398.
131 PECL, vol 1, 396.
132 PECL, vol 1, 396. Cases of moral impossibility as known in German law are excluded by the
provisions of subsection (c). See R Zimmermann, “Remedies for non-performance: the revised
German Law of Obligations, viewed against the background of the Principles of European
Contract Law” (2002) 6 Edinburgh LR 271 at 285.
applied.133 The exception is very specific and does not grant a general remedy
protecting the debtor against undue hardship, although there may be some
overlap.
PECL strictly excludes the possibility of requiring specific performance
for the provision of services or work of a personal nature.134 This is based on
three considerations, namely the severe interference with the personal
liberty of the debtor, the fact that work under compulsion may often be
rendered unsatisfactorily, and the difficulty for a court in controlling proper
135
enforcement of its order. Enforcement of restraints of trade may also fall
foul of this exception if it would result in an indirect enforcement of the
136
personal work or services.
Exception (d) requires the aggrieved party to make a substitute trans-
action where it can reasonably be done. This can place the aggrieved party in
an invidious position because of the legal uncertainty involved in the term
“reasonably”, the application of which will depend very much on the specific
circumstances of the case. The position may be somewhat alleviated if the
suggestion in the Comments is followed that the choice made by the
aggrieved party affords prima facie proof that a substitute transaction would
not be reasonable; this would place the onus on the defaulting party to show
that the aggrieved party could obtain performance from other sources
without any prejudice.137
There is a final limitation under Article 9:102(3) PECL, namely that the
claim for specific performance must be made within a reasonable time after
the creditor ought to have become aware of the non-performance. Once
again the onus is on the non-performing party to show that an unreasonably
long period has elapsed and, possibly in view of the objective of this
exception, that it will suffer prejudice as a result of that.
Where the exception applies, the aggrieved party has to resort to other
138
remedies at its disposal under PECL. Usually this will be a claim for damages.

On the issue of specific performance South African law, Scots law, and PECL
depart from the point of view that a party is in principle entitled to specific
133 See Zimmermann (2002) 6 Edinburgh LR 271 at 281–283.

134 Article 9:102(2)(c) PECL.
135 PECL, vol 1, 397.
136 PECL, vol 1, 397–398.
137 PECL, vol 1, 398.
138 PECL, vol 1, 399.
performance, but that there are certain instances where it will not be
granted. All three systems, it seems, have been influenced to some extent by
English law. It is, however, in these exceptions that we find a clear distinction,
in that the South African and Scots law grant a general judicial discretion to
refuse specific performance whereas the PECL exceptions operate strictly:
this means that on the one hand a court has no discretion to refuse specific
performance where the exceptions are not present, while on the other hand
it has no discretion to grant specific performance where the requirements of
the exceptions have been met. In this sense South African and Scots law
represent a more flexible approach than PECL, although Articles 9:101(2)
and 102(2)(b) and (d) PECL afford some flexibility in the use of the terms
“reasonable”, “unreasonable” and “reasonably”.
In clearly distinguishing between monetary obligations and non-monetary-
obligations, the PECL approach provides a more nuanced and legal solution
which is, at the same time, more conducive to legal certainty, than the South
African position, which is to treat both types of obligations in the same
manner and to subject them to the same general judicial discretion of undue
hardship. This approach comes closer to the Scots approach, where, however,
it appears to be based on different reasons.139 The South African decision in SA
Harness Works,140 in turn, comes close to establishing a position in respect of
the enforcement of payments similar to that under Article 9:101(2)(b) PECL.
So far as non-monetary obligations are concerned, there is a considerable
difference between PECL and the South African approach. PECL provides
for very specific circumstances where the remedy will be refused, whereas
South African law uses a broadly defined judicial discretion which applies in
all cases. Although certain types of exceptions or factual situations have been
identified where the discretion will be applied, these do not form a numerus
clausus. The position is similar in Scots law.
All three systems agree that performance will not be enforced where it is
impossible to do so, whether such impossibility is objective or subjective. The
South African exception with regard to the use of the remedy in cases of
insolvency is not directly dealt with in PECL, although it can possibly be seen
as a performance that would be unlawful if the applicable insolvency
provisions forbid or restrict such performance.
PECL exception (b) is much more limited in its scope than the South
African limitation of undue hardship, although there will probably be quite a
139 In Scots law the distinction is important due to the sanction of imprisonment following non-
compliance with a decree for specific implement.
140 SA Harness Works v SA Publishers (Pty) Ltd 1915 CPD 43.
big overlap in their application to practical situations. The PECL provision

provides more certainty, whereas the South African law, in this respect,
provides more flexibility.
The biggest divergence between PECL and South African law, however, is
found in the provisions dealing with the enforcement of contracts for services
or work of a personal nature. At the same time, PECL is very similar to the
Scots common law position in this regard. In terms of PECL a court has no
option but to refuse such a claim. South African law, in contrast, will go quite
far in requiring specific performance, as the discussion above of the SA
141 142
Harness and Igesund cases shows. In view of the basic point of depart-
ure, the South African approach is to be preferred. The reasons for a general
143
refusal, as set out in the Comments, originate from English law and are
144
unconvincing. The reasoning of the courts in the Stag Packings and
145
Igesund cases is to be preferred. It is only where the personal liberty of the
debtor is unreasonably limited that a restraint ought not to be enforced.
South African case law contains no instances similar to the exception in
Article 9:102(d) PECL, but there is a parallel in Scots law. The availability of
damages or of a substitute transaction provides no relief to the debtor unless
the order of specific performance will cause undue hardship. The emphasis,
however, is on the undue hardship of the debtor and not on the availability of
alternative remedies. This rule of PECL and Scots law provides a fairer and
more acceptable solution than the rather strict South African position.
The restriction under Article 9:102(3) PECL finds no direct corollary in
South African or Scots law. There is apparently no time limitation on the
aggrieved party in these systems to lodge its claim for specific performance
other than that it must not cause undue hardship. However, if the application
of this exception in PECL is restricted to cases where the debtor can show
prejudice, as suggested in the Comments, the practical differences may not
be all that big.
Although in respect of specific performance PECL, Scots law and South
African law all start from the same principle, namely pacta sunt servanda,
there are considerable differences in the way in which the restrictions to this
principle operate. Due to the compromise character of PECL, there is much
less flexibility in the application of the restrictions which are in some areas
141 SA Harness Works v SA Publishers (Pty) Ltd 1915 CPD 43.

143 PECL, vol 1, 397.
144 National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151.
more restricted (especially exception (d)), and in some areas much more
restrictive, (especially (c)), than South African law. The strictness of the
exceptions is more closely akin to the position in Scots law. PECL does,
however, offer a limitation in (d) which is worthy of consideration in South
African law.
C. SPECIAL DAMAGES OR REMOTENESS OF DAMAGES

(1) Introduction
It is generally recognised that mere factual causation of damages may lead to
liability for the defaulting party that goes much too far; thus, in the interests
146
of fairness, such liability should be limited in some way or another. This was
147
recognised even in Roman times. But it was also recognised in the famous
148 149
English decision of Hadley v Baxendale. Here the court held:
Where two parties have made a contract which one of them has broken, the
damages which the other party ought to receive in respect of such breach of
contract should be such as may fairly and reasonably be considered either arising
naturally, i.e., according to the usual course of things, from such breach of contract
itself, or such as may reasonably be supposed to have been in the contemplation of
both parties, at the time they made the contract, as the probable result of the
breach of it.
That decision has also been influential in South African law,150 Scots law151
152
and the drafting of PECL.

In classical Roman law a difference was made between actiones stricti iuris,
where a specific amount not exceeding the value of the object owed was
claimed, and actiones iudicia bonae fidei, where judges awarded a sum
estimated to be equitable under the circumstances, which amount did not
146 Joubert, Contract, 251; Wessels, Contract, § 3239; Christie, Contract, 637; MacQueen &
Thomson, Contract, paras 6.31–6.38; Article 9:503 PECL, Notes 1–3.
147 Zimmermann, Obligations, 826–828.
148 (1854) 9 Ex 341 at 354.
149 At 351.
150 See Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 687.
para 33.29.
152 See Article 9:503 PECL, Note 1.
necessarily reflect the objective value of the object of the performance. The
id quod interest awarded to the plaintiff was based on subjective factors and
constituted a flexible and equitable approach.153
By the time of Justinian this individualised method of assessing loss was
extended to all cases. Justinian was not happy with the intricacies of the case
law and introduced the lex Sancimus in terms of which the claim was limited
154
to double the amount of the value. This crude limitation of the liability of
the defaulting party which baffled generations of jurists, was to remain
155
influential well into the nineteenth century.
The French writer Molinaeus in 1574 seems to have been the first com-
156
mentator who tried to explain the in duplum rule in terms of foreseeability.
Pothier divorced this idea of foreseeability from the original provision in
Codex 7.47.1 and explained it purely on the basis of reason and natural equity.
It was deemed that the debtor would not have subjected himself to risks beyond
157
those that were foreseeable at the time of the conclusion of the contract.
Pothier’s views were enthusiastically received by nineteenth-century
English courts and provided the basis for the formulation of the rule in
Hadley v Baxendale quoted above. It also forms the basis for the approach
initially followed by South African courts.158

In Emslie v African Merchants Ltd159 the rule in respect of causation was
formulated as follows:
It is plain that if a plaintiff claims damages he must not only prove to the
satisfaction of the Court the actual amount of his loss through the defendant’s
failure to perform his contract, but he must further show either the damages he
claims were in the contemplation of the parties at the time of entering into the
contract, or are the direct, proximate and natural result of the breach of contract.
For this statement the court relied on passages of Voet, Domat and, above all,
Pothier.160 From Pothier’s exposition it is clear that not only damages in the

154 C 7.47.1; cf Zimmermann, Obligations, 828; Joubert, Contract, 251.
156 Joubert, Contract, 252; Zimmermann, Obligations, 829.
157 Joubert, Contract, 252; Zimmermann, Obligations, 829; De Wet & Van Wyk, Kontraktereg,
205; Wessels, Contract, § 3305.
158 Wessels, Contract, §§ 3238; 3253–3257; Joubert, Contract, 252; De Wet & Van Wyk, Kontrakt-
ereg, 205.
159 1908 EDC 82 at 90.
160 At 91.
actual contemplation of the parties come into play, but also those damages
that were foreseeable at the time of entering into the contract.
In Victoria Falls & Transvaal Power Co Ltd v Consolidated Langlaagte
Mines Ltd161 Innes CJ stated that although the non-defaulting party is
entitled to full compensation for the damages, the reinstatement cannot be
complete for it would be “inequitable and unfair to make the defaulter liable
for special consequences which could not have been in his contemplation
when he entered into the contract”. He then went on to explain that the legal
position in Holland and England is substantially the same, relying on the
162
Emslie case, Voet, Pothier and Hadley v Baxendale. This represented a
simple restatement of the foreseeability test of Pothier, or the contemplation
163
principle, as it has become known subsequently.
The rule in Hadley v Baxendale is usually said to comprise two parts,
namely a provision for liability for damages arising naturally from the breach,
i.e. the “general” or “intrinsic damages”, and a provision for liability for “special”
164
or “extrinsic damages”. According to this division a party is always liable for
general damages, whereas it is only liable for special damages where such
damages may “reasonably be supposed to have been in the contemplation of
both parties”.165
This fairly concise and clear statement of the law, which is in accordance
with the position favoured by Pothier and English law, was thrown into a state
of confusion, still enduring in South African law, by the decision in Lavery &
166
Co Ltd v Jungheinrich. Curlewis JA started off by restating the con-
templation principle, namely that special damages must have been in the
contemplation of the parties and that this can be inferred from either the sub-
ject matter, the contract, or the knowledge of both parties of special circum-
167
stances. He then, however, went on to require that the contract should
have been entered into on the basis of the parties’ knowledge of the special
circumstances. This might have been an ambiguous explanation of the con-
templation principle, but Wessels JA added his own gloss to this explanation
by requiring that the knowledge of the special circumstances must be “so far
161 1915 AD 1 at 22.

162 (1854) 9 Ex 341.
163 Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A) at 552.
164 Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 687;
Christie, Contract, 637–639; Joubert, Contract, 251–252.
165 Hadley v Baxendale (1854) 9 Ex 341; Holmdene Brickworks (Pty) Ltd v Roberts Construction
Co Ltd 1977 (3) SA 670 (A) at 687.
166 1931 AD 156.
167 At 169.
in the mind and contemplation of the parties as virtually to be a term of the

contract”. This was later referred to as the “convention principle”.168
Although this statement is still ambiguous in using the term “virtually”, the
issue that there had to be actual consensus, either express or tacit, was put
beyond doubt by the analysis of the decision in Shatz Investments v
Kalovyrnas,169 where the court accepted that the Lavery case authoritatively
introduced the convention principle as part of the South African law.
Although Trollip JA regarded its acceptance of the principle as suspect, and
worthy of criticism, he was not prepared to jettison it in the fashion of English
170
law, because the matter had not been fully argued before him.
In two subsequent cases the Appellate Division has also declined to
overturn the decision in the Lavery case despite cogent reasons to do so. In
171
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd Corbett JA
refused to resolve the controversy caused by the Lavery case, as the case
under consideration was concerned with general damages. The court,
however, did restate the law, albeit obiter, in the conventional manner refer-
ring to the actual or presumptive contemplation of the parties. In Thorough-
bred Breeders’ Association v Price Waterhouse,172 however, Nienaber JA gave
very strong indications that when the appropriate case came before the court
it would most probably reject the discredited convention principle and develop
the law along the lines recognised for the causation issue in other branches of
South African law, such as crime, delict, insurance and estoppel.173
The convention principle is therefore still part of South African law. There
seems little doubt that it will be rejected and that courts will return to some
form of the contemplation or foreseeability principle developed in accord-
ance with the principles of causation currently applied in other parts of the law.
Nienaber JA also made further important remarks in respect of the second
leg of the rule in Hadley v Baxendale dealing with special damages. It raises
for the first time in South African case law questions about the proper
meaning of the word “probable” in the phrase “as a probable result of the
168 Shatz Investments v Kalovyrnas 1976 (2) SA 545 (A) at 552F; Holmdene Brickworks (Pty) Ltd
v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 687; Christie, Contract, 640.
169 1976 (2) SA 545 (A) at 551–552; Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd
1977 (3) SA 670 (A) at 688.
170 Referring to Victoria Laundry (Windsor) Ltd. v Newman Industries Ltd [1949] 2 KB 528 (CA)
and Koufos v C Czarnikow Ltd, The Heron II [1969] 1 AC 350. See also Thoroughbred Breeders’
Association v Price Waterhouse 2001 (4) SA 551 (SCA) para [51] at 582.
171 1977 (3) SA 670 (A) at 687.
172 2001 (4) SA 551 (SCA).
173 Para [52] at 582–583.
breach”.174 The issue is whether “probable” has the meaning of “more likely
to occur than not”, or whether it has a more limited meaning.
These questions have been dealt with in a number of English cases.175 In
The Heron II case,176 the House of Lords rejected the notion that the test was
reasonable foreseeability if it meant the same low threshold of probability as
that required in tort law.177 Lord Reid ascribed the meaning of “not unlikely
178
to occur” to the word. This meant “a degree of probability considerably less
than an even chance but nevertheless not very unusual and easily foresee-
179 180
able”. Lord Upjohn used the terms “a real danger” and “a serious
181 182
possibility” to describe the probabilities, terms earlier used in the Monarch
183
Steamship Co Ltd case. The result of The Heron II is that a higher degree
of probability is required to satisfy the test of remoteness in contract than in
184
tort law. The difficulty of applying the test is apparent from subsequent
185
cases.
Nienaber JA appears to favour a more moderate approach to this question.
186
Foreseeability or remoteness, according to him, does not mean:
… that the type of event or circumstance causing the loss will in all probability
occur but minimally that its occurrence is not improbable and would tend to
follow upon the breach as a matter of course.
The approach requires a “realistic possibility” that harm may occur, i.e. a test
at the lower end of the scale of probabilities, rather than a “likelihood”, i.e. a
test at the upper end of the scale of probabilities.
174 Relying inter alia on the exposition of Kerr, Contract, 5th edn (1998), 700–701.
175 Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 (CA); Koufos v C
Czarnikow Ltd [1969] AC 350; Balfour Beatty Construction (Scotland) Ltd v Scottish Power plc
1994 SC (HL) 20. See generally H McGregor, McGregor on Damages, 17th edn (2003), paras
248–274; M P Furmston, Cheshire, Fifoot and Furmston’s Law of Contract, 13th edn (1996),
614–617; Treitel, Contract, 965–968.
176 Koufos v C Czarnikow Ltd, The Heron II [1969] 1 AC 350.
177 At 385, 411, 425.
178 At 383A.
179 At 397.
180 At 425.
181 At 414–415; The Pagase [1981] 1 Lloyd’s Rep 175 at 182; Malik v BCCI [1998] AC 20 at 37.
182 At 414–415, 425.
183 A/B Karlshamns Oljefabriker v Monarch Steamship Co Ltd [1949] AC 196; 1949 SC (HL) 1.
184 Treitel, Contract, 967.
185 See the discussion of the decision in H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd
[1978] QB 791 by Treitel, Contract, 967–968.
186 Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA) at 581F.
(3) Scots law

Scots law deals with the issue of special damages under two distinct heads,
namely general causation and remoteness. General causation is determined
by the “but for” or sine qua non test. It is merely required that the breach
must have been a material cause of the damages.187 The extent of the liability
of the defaulting party is limited by the principle of remoteness. The
discussion here, however, is restricted to the issue of remoteness.
The principle of remoteness was well established in Scots law by the
eighteenth century,188 long before the decision in the English case of Hadley
189 190
v Baxendale. Scots law followed Pothier in this regard. Despite this
venerable historic fact, Hadley v Baxendale provides the point of departure
for most discussions of this topic in modern Scots law, without appreciation of
191
the Civilian roots of this doctrine.
The position in modern Scots law is largely determined by five cases, namely
192
Hadley v Baxendale, Victoria Laundry (Windsor) Ltd v Newman Indus-
193 194
tries Ltd, , A/B Karlshamns Oljefabriker v Monarch Steamship Co Ltd,
195
the Heron II, and Balfour Beatty Construction (Pty) Ltd v Scottish Power
196
plc. These have already been discussed above when dealing with the
English influence on South African law.
It would seem that in Scots law the remoteness test in contract law is
generally more restrictive than that in delict, being limited to what is reason-
ably contemplated rather than what is reasonably foreseeable.197 The reason
offered for this distinction is that contracts are usually planned relationships
and parties can therefore regulate their liability, whereas in delict they
cannot. But this reasoning is hardly convincing.198 The leading Scottish case,
199
Balfour Beatty, applied a reasonable contemplation standard.
187 MacQueen & Thomson, Contract, para 6.31; McBryde, Contract, para 22-16 ff; Walker,
Contract, para 33.26.
188 MacQueen & Thomson, Contract, para 6.33; McBryde, Contract, paras 22-01–22-03; Walker,
Contract, para 33.21.
189 (1854) 9 Ex 341.
190 McBryde, Contract, para 22-01.
191 MacQueen & Thomson, Contract, para 6.33; McBryde, Contract, para 22-03; and 22-60.
192 (1854) 9 Ex 341.
193 [1949] 2 KB 528.
194 1949 SC (HL) 1.
195 [1969] 1 AC 350.
196 1994 SC (HL) 20.
199 McBryde, Contract, para 22-64.
In practice the differences in approach may be difficult to determine and

are probably best summed up by Lord Denning:200
I soon begin to get out of my depth. I cannot swim in the sea of semantic exercises
– to say nothing of different degrees of probability – especially when the cause of
action can be laid either in contract or in tort. I am swept under the conflicting
currents.
MacQueen and Thomson indicate that there was a definite trend in Scots law
to expand liability by relaxing the standard of contemplation, but that the
trend was somewhat reversed in the Balfour Beatty case by the House of
Lords.201 In that case a contractor was constructing a concrete aqueduct
which necessitated a process of continuous pouring of concrete. There was a
power failure constituting a breach of contract on the part of the power
company which resulted in a substantial part of the aqueduct having to be
demolished and rebuilt. The court held that the damages were too remote,
relying on the first leg of the Hadley v Baxendale test in that the damage did
not arise in the ordinary course of events and was therefore too remote. It
had also not been in the contemplation of the parties and the power company
did not have any special knowledge about the business of the contractor.
202
Cosar Ltd v UPS Ltd provides an interesting illustration of an instance
where a contracting party was held to have had knowledge of special
circumstances. The delivery company failed to deliver tender documentation
in time with the result that the contractor’s tender was not considered during
the tender process. It was held that the information supplied to the courier
was sufficient to provide it with the necessary knowledge that the loss of the
opportunity to tender could lead to a loss of the contract, provided that that
knowledge extended to the likelihood of the tender being successful.203

The point of departure in PECL is that a claim for damages is a remedy that
is generally available unless non-performance is excused under Article 8:108
PECL. It can be brought in addition to any other remedies that a party may
have, provided that actual damages have been suffered. The provisions aim at
compensating the aggrieved party as fully as possible.204
200 In H Parsons (Livestock)Ltd v Uttley Ingham & Co Ltd [1978] QB 791 at 802.
201 MacQueen & Thomson, Contract, para 6.36; McBryde, Contract, para 22-68.
202 1999 SLT 259.
203 See MacQueen & Thomson, Contract, para 6.38.
204 Zimmermann (2002) 6 Edinburgh LR 271 at 288.
205 PECL, vol 1, 442.
206 Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA) at 582F.
PECL also recognises that the liability for damages cannot be unrestricted.
Article 9:503 PECL therefore formulates a general test of foreseeability
excluding the liability for damages that are too remote. The formulation of
Article 9:502 PECL accords with the general principle recognised in many
legal systems that the aggrieved party is entitled to its fulfilment (or
expectation or performance) interest. Whether a party chooses to enforce the
contract by specific performance, or to terminate it where there has been a
fundamental non-performance in terms of Article 8:103 PECL, the
aggrieved party can claim full damages, including a loss of profit, in order to
be placed, financially, in a position as close as possible to the one if the
contract had been properly performed. This is only limited by the provisions
of foreseeability contained in Article 9:503 PECL.
The first important aspect to note in Article 9:503 PECL is that it focuses
only on what the non-performing party actually foresaw or could have foreseen.
It is therefore not necessary to ask whether the aggrieved party could have
foreseen such loss. That question is irrelevant, and quite rightly so. The test is
an objective one to protect the defaulting party from too wide a liability. It is
therefore reasonable to restrict its liability to what a party in its position could
reasonably have foreseen at the time of the conclusion of the contract.
The limitation on liability apparently does not operate in favour of the
defaulting party where the breach of contract was intentional or grossly
negligent. In these instances the only limitation would be normal factual
causation, i.e. the defaulting party will be liable for all damages caused by its
205
default, even those which would ordinarily be regarded as too remote.
The reference to “as the likely result” of the breach at first blush seems to
require a high degree of probability that such loss would result if regard is
had to the discussion of the English law and The Heron II above. “Likely
result” can either have the meaning of “a reasonable possibility” or “serious
possibility” at the lower end of the scale of probabilities, or “more likely to
occur than not” at the higher end of the scale of probabilities. In the Notes to
Article 9:503 PECL the similarity of this provision with the rule in Hadley v
Baxendale is discussed without reference to the subsequent difficulties in
interpreting the word “probable” in English law.
Finally the foreseeability must be judged as at the time of the conclusion
of the contract and not at the time of the breach. This is in line with the
principle in many legal systems that a party should only be liable for the risks
it actually undertook or should have foreseen at the time of contracting.

Although South African and Scots law as well as PECL seem to depart from
the rule in Hadley v Baxendale in respect of the causation of damages, there
are important aspects in which these systems diverge from that early
formulation. In addition South African law seems to have accepted the
convention principle which is even more restrictive than the contemplation
principle formulated in Hadley v Baxendale.
It would seem that there is general agreement between writers and courts
in South Africa that the acceptance of the convention principle, requiring
actual consensus between the parties on the possibility of remote damages,
was a mistake and should be rejected. The proper occasion has just not yet
arrived for the Supreme Court of Appeal to do so, leaving inferior courts to
manipulate the facts to avoid the full consequences of the restriction.
Obviously this is a highly unsatisfactory state of affairs. In reforming the law,
the Supreme Court of Appeal may also reconsider the development of this
part of the law, as is quite clear from the decision in the Thoroughbred
206
Breeders case. The court will be helped by having regard to either Scots
law or the PECL in doing so.
PECL departs from the rule in Hadley v Baxendale in two important
respects. It focuses solely on the foreseeability by the defaulting party and
not by both parties, and it excludes the limitation in instances of intentional
or grossly negligent non-performance. The underlying principle involved in
this rule is that it would be manifestly unfair to subject the defaulting party to
risks it did not or could not reasonably have foreseen at the time of the
conclusion of the contract. What the aggrieved party foresaw or should have
foreseen is therefore irrelevant and need not be considered. That departure
from the rule in Hadley v Baxendale is therefore fully justified. Similarly,
where a party is grossly negligent, or intentionally breaks the contract, it
should not be entitled to rely on this restriction and should fully compensate
the other party for damages. This is a policy decision and probably a
commendable one. The only question is whether it should not have been
restricted to intentional non-performance.
The use of the term “likely” in Article 9:503 PECL is unfortunate, as it
apparently requires a degree of probability higher than the drafters may have
had in mind. This should be clear from the discussion of this issue in English
law. It would appear from the Comments that the term has the same meaning
as “probable” in Hadley v Baxendale which still leaves courts with
interpretational uncertainties. The approach as set out in English law, namely

that it means “a serious possibility” without suggesting that there should be
more than an even chance of it occurring, is probably also appropriate here.
The position of PECL in respect of remote damages and causation
provides a good example of the rational and fair development of the rule in
Hadley v Baxendale. It should be considered when South African law is
reconsidered.
D. CONCLUSION
It is clear that mixed legal systems can often draw upon the collective wisdom
and divergent approaches contained in different legal systems to formulate
their own approaches which may provide solutions that are superior, in the
sense of being more developed and nuanced. However, the hybrid character
or compromise nature of the solution may sometimes also lead to inferior
solutions in the sense that they are too restrictive or limiting; or it may even
lead to outright bad results. The rules relating to specific performance and
special damages in PECL and South African law provide examples for both
possibilities.
The provisions of PECL in respect of specific performance are probably
more limiting than necessary when compared to South African and Scots law.
They do, however, contain some solutions such as that in respect of substitute
transactions which are worthy of consideration in both legal systems.
The acceptance of the convention principle in South African law,
apparently under the influence of earlier English law, is simply bad law.
Fortunately it has been universally recognised that it should be abandoned.
The provisions of PECL may prove helpful in reformulating this area of
South African law.
11 Termination for Breach
of Contract
Tjakie Naudé
A. INTRODUCTION
B. GROUNDS FOR TERMINATION
(1) Fundamental or material breach
(a) Unitary concept of non-performance
(b) More detailed definition of fundamental breach
(2) Ultimatum procedure in the case of delay
(3) Anticipatory breach
(4) Termination for failure to give adequate assurance of performance
C. EFFECT OF TENDER TO CURE ON REMEDY OF
TERMINATION
(1) PECL
(2) Scots law
(4) Conclusion
D. CONSEQUENCES OF TERMINATION
(1) Mutual restitution not the point of departure under PECL
(2) Article 9:306 PECL
(a) Comparison with South African law
(b) Comparison with Scots law
(c) Evaluation
(5) Calls for unified winding-up regime
E. CONCLUSION
280
termination for breach of contract 281
A. INTRODUCTION
1
The remedy of termination for breach of contract was introduced into Scots
2
and South African law under the influence especially of English law. In
neither Roman nor Roman-Dutch law was there a generalised remedy of
termination for breach of contract, as it is known to modern law.3 Scots and
South African law do not, however, mirror English law on all aspects of
termination. In a number of instances, the courts have refused indiscrimin-
ately to take over all of English law on the subject.4
It has been said that the rules on termination upon non-performance of
PECL also follow the Common Law rather closely in a number of respects.5
Similarities between PECL and Scots and South African law on termination
are therefore to be expected.
One characteristic of the remedy of termination for non-performance
under PECL which is not shared with the Common Law, is that the rules on
6
termination apply equally to breach of contract and to excused non-
performance (excused as a result of an impediment beyond the debtor’s
control). In Scotland and South Africa, as in the Common Law, termination
due to excused supervening impossibility of performance is regarded as a
doctrinally distinct issue meriting separate treatment from termination as a
7
remedy for breach of contract. To keep this chapter within manageable
bounds, only termination as a remedy for breach of contract, and only the
following aspects thereof, will be considered:
1 “Rescission” is the preferred term in Scotland, and “cancellation” in South Africa. I prefer the
term “termination” used also by PECL.
2 For South African law, see A Cockrell, “Breach of contract”, in Zimmermann & Visser, Southern
Cross, 303 at 308, 313, 314, 317, 321. The writings of Pothier also played a role in South Africa (J
R Harker, “The nature and scope of rescission as a remedy for breach of contract in American and
South African law” 1980 Acta Juridica 61 at 70). For Scots law, see W W McBryde, “The Scots law
of breach of contract: a mixed system in operation” (2002) 6 Edinburgh LR 5 at 11; D Johnston,
“Breach of contract”, in Reid & Zimmermann, History, vol 2, 175; McBryde, Contract, 509. H L
MacQueen, “Scots and English law: the case of contract” (2001) 54 CLP 205 notes that the
principle of mutuality was also decisive.
3 Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) (henceforth Stewart Wrightson) at
953B; Zimmermann, Obligations, 800 ff; Harker, 1980 Acta Juridica 61 at 69; Cockrell, in
Zimmermann & Visser, Southern Cross at 320.
4 Zimmermann & Visser, Southern Cross at 322. For example, the distinction between conditions
and warranties and the doctrine of total failure of consideration do not form part of South African
and Scots law.
5 H Beale, A Hartkamp, H Kötz & D Tallon, Cases, Materials and Text on Contract Law (2002),
756.
6 In the sense of non-justified failure or refusal to perform in terms of the contract.
7 See, e.g, Walker, Contract; McBryde, Contract; MacQueen & Thomson, Contract; Gloag,
Contract; Christie, Contract; Kerr, Contract; and Van der Merwe et al, Contract, who discuss
these two issues in separate chapters.
1. grounds for termination (in other words, when the remedy is available);
2. effect, on the availability of the remedy, of a tender to cure the breach;
and
3. consequences of termination.
B. GROUNDS FOR TERMINATION

PECL provides for three instances in which a contract may be terminated for
non-performance. First, the contract may be terminated if the non-
8
performance is fundamental. Second, an ultimatum procedure is provided
for in the case of delay, which allows the aggrieved party to terminate where
9
the delay is not in itself a fundamental non-performance. Third, termination
10
for anticipatory non-performance is possible. Article 8:105 PECL provides
for a fourth related instance in which a party may terminate: a party who
reasonably believes that there will be a fundamental non-performance may
demand adequate assurance of due performance, and may terminate where
this assurance is not provided within a reasonable time. These four instances
will now be compared with South African and Scots law. Of course, the
parties themselves may also provide expressly for a right to terminate which
will override the aforementioned residual rules.
(1) Fundamental or material breach

(a) Unitary concept of non-performance
As far as cancellation for fundamental non-performance is concerned, PECL
11
adopts a unitary or generalised concept of non-performance. Any type of
non-performance justifies termination, as long as it is fundamental. Scots law
also holds that any material breach justifies cancellation, and thus has a
12
unitary concept of breach.
The unitary approach of PECL and Scots law contrasts with the South
African approach, which at first glance is more fragmented. Courts and
textbook writers hold that the breach must first be pigeon-holed into one of

9 Article 9:301(2) PECL read with Article 9:106(3) PECL.
11 Article 8:103 PECL. “Non-performance” is defined in Article 1:301 PECL as any failure to
perform an obligation under the contract, “and includes delayed performance, defective
performance and failure to co-operate in order to give full effect to the contract”.
12 Walker, Contract, 524; MacQueen & Thomson, Contract, 205; Gloag, Contract, 602; McBryde
“Remedies for breach of contract” (1996) 1 Edinburgh LR 43 at 55.
several categories of breach, each with its own test for when termination is
allowed.13
Closer examination of South African law reveals, however, that the notion
of materiality is important throughout. Thus, positive malperformance
(defective performance) justifies termination when the breach is material.14
Prevention of performance also only allows the debtor to terminate the
15
contract, if it amounts to a material breach. Apart from the case where the
entire contract is repudiated, only the repudiation of a “material aspect” or
16
“material term” allows an election to terminate. It is not specifically stated
that mora or delay justifies termination if it amounts to a material breach.
Instead, a right to terminate exists (apart from the ultimatum procedure)
17
only where “time is of the essence under the contract”. However, this may
just be another way of saying that the delay constitutes a material breach.
It must also be noted that some writers on Scots law have found it useful to
distinguish between different forms of breach, such as delay, defective per-
formance, impossibility of performance and repudiation (conduct demon-
strating an unequivocal intention no longer to be bound), when discussing
the instances when termination will be permitted.18 In addition, the English
law criterion of time being of the essence of the contract is applied to delay
only,19 but that is simply a manner of saying that the delay has to be material.
Textbook writers also generally treat anticipatory breach or repudiation
separately.20
(b) More detailed definition of fundamental breach

Both Scots and South African statements on the law relating to termination
for material breach consist of vague tests, which do not give much guidance
13 The history of this development is sketched by Cockrell, in Zimmermann & Visser, Southern
Cross, 304–319. See also, e.g, Van der Merwe et al, Contract, ch 10; Lubbe & Murray, Contract,
ch 10.
14 De Wet & Van Wyk, Kontraktereg, 179; Van der Merwe et al, Contract, 328; Lubbe & Murray,
15 Grobbelaar v Bosch 1964 (3) SA 687 (E) at 691; Holgate v Minister of Justice 1995 (1) SA 921 (E)
at 937A–B; Lubbe & Murray, Contract, 483.
16 Culverwell v Brown 1990 (1) SA 7 (A); Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398
(A).
17 See, e.g., Van der Merwe et al, Contract, 319; Joubert, Contract, 237 and cases there cited.
18 MacQueen & Thomson, Contract, 206 ff; Gloag, Contract, 603 ff; Walker, Contract, 523–524; cf
Edinburgh Grain Ltd v Marshall Food Group Ltd 1999 SLT 15.
19 Walker, Contract, 523; Gloag, Contract, 615; McBryde (1996) 1 Edinburgh LR 43 at 65; Ahmed
v Akhtar 1997 SLT 218.
20 McBryde, Contract, 485 ff; MacQueen & Thomson, Contract, 206.
to parties or courts on when a breach will be regarded as material.21 In both

countries one often encounters the metaphor of the breach going to the root
of the contract22 and other similarly imprecise tests.
By contrast, PECL defines “fundamental breach” with more precision.
There are three instances when a breach will be fundamental. These are,
first, where strict compliance with the obligation is of the essence of the
contract; secondly, where the non-performance substantially deprives the
aggrieved party of what it was entitled to expect under the contract, unless
the other party did not foresee and could not reasonably have foreseen that
result; and thirdly, where the non-performance is intentional and gives the
aggrieved party reason to believe that it cannot rely on the other party’s
23
future performance.
Closer examination of Scots and South African case law reveals, however,
that the same considerations are in fact taken into account to establish
whether a breach is material. Under both systems, for example, a delay
warrants termination where “time is of the essence of the contract” (in other
words where strict compliance is of the essence of the contract).24 In
addition, in many South African cases on positive malperformance (defective
performance) and partial repudiation, the presence or absence of substantial
detriment to the aggrieved party was of decisive importance for the court’s
conclusion on the materiality of the breach.25 The impact of the breach on the
aggrieved party has also been taken into account in Scottish cases to deter-
26
mine whether a breach is material. The question whether the breach was
27
intentional was considered relevant in Aucamp v Morton, a South African
case on positive malperformance.
21 T Naudé & G Lubbe, “Cancellation for ‘material’ or ‘fundamental’ breach: a comparative analysis
of South African law, the UN Convention on Contracts for the International Sale of Goods
(CISG) and the UNIDROIT Principles of International Commercial Contracts” (2001) 12
Stellenbosch LR 357 at 373; Cockrell, in Zimmermann & Visser, Southern Cross, 313; cf Harker,
1980 Acta Juridica 61 at 79.
22 Scottish Law Commission Discussion Paper on Remedies for Breach of Contract (Scot Law Com
DP No 109, 1999) (henceforth Scot Law Com DP No 109 (1999)), 9; Wade v Waldon 1909 SC
571 at 576; Gloag, Contract, 602; Oatarian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) at
784G; Elgin Brown & Hamer (Pty) Ltd v Industrial Machinery Suppliers (Pty) Ltd 1993 (3) SA
424 (A) at 430I–J.
25 For details, see Naudé & Lubbe (2001) 12 Stellenbosch LR 357 at 382–385.
26 See, for example, Macari v Celtic Football and Athletic Co Ltd 1999 SC 628 at 635–636; Ghaznavi
v BP Oil (UK) Ltd 1991 SLT 924 at 928, 931. The Scottish Law Commission has also said that the
modern tendency is to focus on the materiality of the breach rather than simply on the term
breached (Scot Law Com DP No 109 (1999), para 2.9).
27 1949 (3) SA 611 (A).
One lesson that Scots and South African law can therefore learn from
PECL is to formulate more explicitly the factors that courts regard as
relevant to establish the materiality of breach. PECL gives the courts some
leeway to take account of the particular circumstances of the case, but it also
provides guidance on the aspects to be considered, enabling parties properly
to prepare for litigation on the materiality of the breach.28 A failure to take
account of all possibly relevant considerations may render a decision on the
29
materiality of a breach less persuasive.
In this regard, the approach adopted in the UNIDROIT PICC is perhaps
closer to South African practice than that of PECL. PICC simply provides
that a material breach justifies termination, but then adds an open-ended list
of factors to be considered in order to establish whether a breach is
30
material. The three tests listed in PECL are part of this list, but another
factor is added, namely whether the non-performing party will suffer
disproportionate loss as a result of preparation or performance if the contract
is terminated. It appears that PICC, albeit not expressly, grants courts an
equitable discretion to decide whether termination is justified. That the
court should have an equitable discretion to decide whether termination is
possible has been accepted in two South African decisions of the Supreme
Court of Appeal on positive malperformance, i.e. Spies v Lombard31 and
Singh v McCarthy Retail Ltd (t/a McIntosh Motors).32 The Singh decision
speaks of a “value judgment” to be exercised and enjoins the court to consider
33
the competing interests of both parties in order to treat them fairly.
Ultimately the test laid down in the Singh case is whether the breach is “so
serious that it is fair to allow the innocent party to cancel the contract and
34
undo all its consequences’.
The difference in approach between PECL, with its numerus clausus of
three alternative instances of material breach, and PICC is not enormous.
The approach of PICC appears preferable as it enjoins the court to have
regard to all relevant circumstances, including the interests of the party
breaking the contract, and the seriousness of the breach, instead of focusing
28 For example, counsel for the aggrieved party in Singh v McCarthy Retail Ltd (t/a McIntosh
Motors) 2000 (4) SA 796 (SCA) only addressed the court on the materiality of the term breached,
whereas the court also considered the consequences of the breach.
29 See Naudé & Lubbe (2001) 12 Stellenbosch LR 357 at 389 for an example from the case law.
30 Article 7.3.1 PICC.
31 1950 (3) SA 469 (A).
32 2000 (4) SA 796 (SCA).
33 At 804F–G.
34 At 804G–H. See also Ankon CC v Tadkor Properties (Pty) Ltd 1991 (3) SA 119 (C) at 123A.
the court’s attention on only any one of three tests. That termination takes
place extra-judicially is not an obstacle to the view that a discretion is
involved. The decision by the aggrieved party that the breach is serious
enough to warrant termination is explicitly rather than merely implicitly
subjected to a judicial discretion under PICC.35 An objection that the PECL
approach brings more certainty than a judicial discretion36 can be met by the
argument that a certain degree of vagueness is unavoidable in this area. As
Treitel has stated, “the delicate balancing of interests that is required in this
area is pre-eminently a matter for judicial discretion, and not one that can be
37
determined in advance by fixed rules.” What should be avoided is an
unfettered judicial discretion, where the factors which the courts should and
38
do take into account are not formulated clearly.
The acknowledgment by the drafters of PECL that a trivial breach should
39
not warrant termination even where strict compliance is of the essence, means
that the detriment caused to the aggrieved party should in any event be taken
into account in all cases, except, it is submitted, where the contract itself
provides for a right to terminate upon breach. Thus the test in PICC more
correctly reflects the reality that courts should consider the detriment caused
in addition to whether strict compliance is of the essence of the contract.
The recognition of an equitable discretion to allow termination can also be
extended to breach in the form of prevention of performance and mora
(delay).40 Or, at the least, foreseeable substantial detriment caused by the
breach should also justify cancellation for delay, as is the case under PECL.
The causation of foreseeable substantial detriment is probably the best
explanation of the doctrine of “time being of the essence under the contract”.
Certainly such an explanation is superior to the strained argument that a tacit
41
termination clause or lex commissoria is involved. At present, there is a
danger that the “time is of the essence” doctrine will only assist a South
African creditor under a commercial contract subject to price fluctuations
35 Naudé & Lubbe (2001) 12 Stellenbosch LR 357 at 397.

36 This is implicit in the Scottish Law Commission’s preference for the approach of PECL above
that of PICC (Scot Law Com DP No 109 (1999), para 2.16) (although ultimately the Commission
did not deem it necessary to implement either of the two approaches).
37 G H Treitel, Remedies for Breach of Contract (1988) (henceforth Treitel, Remedies), 350. See also
Naudé & Lubbe (2001) 12 Stellenbosch LR 357 at 397; Harker, 1980 Acta Juridica 61 at 79.
39 Comment B to Article 1:201 PECL.
41 Naudé & Lubbe (2001) 12 Stellenbosch LR 357 at 394; cf Cockrell, in Zimmermann & Visser,
Southern Cross at 309–310. The view that a tacit lex commissoria is involved is followed by, e.g.,
Harker, 1980 Acta Juridica 61 at 74.
and so on. That there is a need to protect the creditor in a wider ambit of
cases, when late performance will lead to foreseeable substantial detriment,
is demonstrated by the decision of Cowley v Estate Loumeau.42 In this case
the curators of an insolvent estate were allowed to terminate the sale of a
farm on the basis of the buyer’s failure to pay the price by a certain date. The
court took into account the detriment caused by late performance, namely
that the money was required for purposes of the estate, as mortgagees were
demanding interest and other creditors were pressing their claims. A
discretionary approach to termination for delay on the basis of foreseeable
substantial detriment would also lay to rest Alfred Cockrell’s criticism that “it
is anomalous that a debtor who fails to perform a vital term is better placed
43
than one whose timeous performance is materially defective”.
(2) Ultimatum procedure in the case of delay

Like PECL, both Scots and South African law know an ultimatum procedure
after which the aggrieved party may terminate for delay, regardless of the
44
seriousness of the breach.
One difference between South African and Scots law, on the one hand,
and PECL, on the other, is that the ultimatum under PECL will be effective
even if it stipulates an unreasonable period for performance. If the period
stated is too short, the aggrieved party may still terminate after a reasonable
period.45 By contrast, a notice giving too short a period for performance will
be invalid in South African law and apparently also in Scots law.46
(3) Anticipatory breach

All three systems recognise that an anticipatory breach may justify termin-
ation. In this regard, Article 9:304 PECL provides that “[w]here prior to the
time for performance by a party it is clear that there will be a fundamental
42 1925 AD 392.
43 At 319.
44 McBryde, Contract, 523; MacQueen & Thomson, Contract, 213; Walker, Contract, 557;
McBryde (2002) 6 Edinburgh LR 5 at 18; Rodger (Builders) Ltd v Fawdry 1950 SC 483 at 492;
Johnstone v Harris 1977 SC 365 at 370; Report on Remedies for Breach of Contract (Scot Law
Com No 174, 1999) (henceforth Scot Law Com No 174 (1999)), para 7.38; Van der Merwe et al,
Contract, 319; Christie, Contract, 590; Microcoutsis v Swart 1949 (3) SA 715 (A) at 730. Certainly
in South Africa, this development is owed to English influence (Harker, 1980 Acta Juridica 61 at
74).
46 Ver Elst v Sabena Belgian World Airlines 1983 (3) SA 637 (A); McBryde (2002) 6 Edinburgh LR
5 at 18.
non-performance by it, the other party may terminate the contract.”

There is some ambivalence under PECL and Scots law as to whether
anticipatory non-performance is a breach in itself. The Comment to Article
9:304 PECL draws a distinction between “anticipatory non-performance”
and “actual non-performance”.47 Some Scottish authors deny that anticipatory
breach is a breach before its acceptance by the aggrieved party.48 In this regard,
Scots law and perhaps PECL are still more under the influence of English law,
49
from whence the doctrine of anticipatory breach or repudiation derives. By
contrast, anticipatory breach is indeed regarded as an immediate breach under
50
South African law. “Acceptance” of the repudiation is not required to turn
the repudiation into a breach of contract; it simply amounts to the exercising
51
of an election to terminate the contract. The English law language of offer
52
and acceptance has been rejected in South Africa as inappropriate.
Whereas traditionally repudiation was defined as an unequivocal indica-
53
tion that the contract will not be performed, there is a modern tendency to
allow termination where it is clear that a fundamental breach will occur, as
under PECL.54 For example, in Datacolor International (Pty) Ltd v
Intamarket (Pty) Ltd the South African Supreme Court of Appeal held that
“whether the innocent party will be entitled to resile from the agreement will
ultimately depend on the nature and degree of the impending non- or
malperformance”.55 As is the case under PECL, one is therefore enjoined to
consider whether the forthcoming breach will be material. The implication
may at first sight appear to be that if the party in breach intimates that he will
47 Comment D to Article 9:304 PECL.

48 MacQueen & Thomson, Contract, 206; McBryde (1996) 1 Edinburgh LR 43 at 57. The Scottish
Law Commission has stated that repudiation, “a sort of ‘inchoate breach’” creates an option to
rescind, upon the exercise of which repudiation is treated “as if it were a breach” (Scot Law Com
DP No 109 (1999), para 1.16).
49 McBryde (2002) 6 Edinburgh LR 5 at 21; Scot Law Com DP No 109 (1999), para 2.6.
50 Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (2) SA 284 (SCA) (henceforth
Datacolor International) at 287J; Tucker’s Land and Development Corporation (Pty) Ltd v Hovis
1980 (1) SA 645 (A) (henceforth Tucker’s Land and Development); Novick v Benjamin 1972 (2)
SA 842 (A) at 853H–854A; P M Nienaber, “Kontrakbreuk in anticipando in retrospek” 1989
TSAR 1; Van der Merwe et al, Contract, 332–333; Christie, Contract, 627.
51 Datacolor International (note 50) at 288B.
52 Stewart Wrightson (note 3) at 953; Tucker’s Land & Development (note 50); Datacolor (note 50).
See also Harker, 1980 Acta Juridica 61 at 80, on the artificiality of the “offer and acceptance”
analysis of repudiation.
53 Gloag, Contract, 598–599; McBryde, Contract, 486; McBryde (2002) 6 Edinburgh LR 5 at 20;
White & Carter (Councils) Ltd v McGregor (1962) SC (HL) 1 at 11–12; GL Group plc v Ash
Gupta Advertising Ltd 1987 SCLR 149 (henceforth GL Group plc) at 152; Street v Dublin 1961
(2) SA 4 (W); Christie, Contract, 601.
55 Datacolor 2001 (2) SA 284 at 294I.
not perform at all, the aggrieved party will only be entitled to terminate if
time is of the essence under the contract, since that is presently regarded
under South African law as the only ground when a delay will justify
cancellation in itself.56 However, it appears that even where time is not of the
essence under the contract, a total repudiation of the contract will justify
termination, that is, where the debtor intimates that he will not perform at all.
The test, added the court, is whether a reasonable person would conclude
57
that proper performance will not be forthcoming.
(4) Termination for failure to give adequate assurance of performance

PECL allows a party who reasonably believes that there will be a material breach
on the part of the other party a right to demand assurance of performance,
and if this is not forthcoming within a reasonable time, a right to terminate
58 59
the contract. There is authority for a similar rule in South Africa. In Hayne
60
NO v Narun Bros a buyer assigned his estate and the seller insisted on a
bank guarantee. The court indicated that an aggrieved party was allowed in
such circumstances to ask for security for due performance, failing which the
aggrieved party may cancel the contract. Unlike under PECL, the South
African principle is not expressly qualified by a requirement that a funda-
mental breach is to be feared, but such a requirement is sensible and logical.
The Scottish Law Commission considered the usefulness of such a rule,
but declined to make a recommendation on the point as it received
objections that more uncertainty would be created than would be removed.61
In my view the PECL rule is a useful provision.
C. EFFECT OF TENDER TO CURE ON REMEDY OF

TERMINATION
A tender to cure a remediable breach can conceivably affect the aggrieved
party’s power to terminate in at least four different ways. First, a legal system
may grant the party in breach a right to be given a second chance, or ultimatum,
before the aggrieved party may terminate. A second, weaker, meaning of the
56 Apart from the case where a notice of intention to cancel (an ultimatum) is given or where the
contract expressly provides for cancellation on delay.
57 Datacolor 2001 (2) SA 284 at 294G.
60 1926 OPD 207.
right to cure is that the aggrieved party has no obligation to give an invitation to
cure, but the defaulting party has a right to cure, which overrides a purported
termination. Thirdly, a tender of cure may merely lead to a loss of the right to
terminate provided the tender to cure, or alternatively cure itself, occurs
before termination. This is more akin to a possibility of cure than a right to
cure.62 A fourth manner in which a cure might affect the right to terminate is
when a legal system recognises that a tender to cure may prevent the breach
from being fundamental or material, so that no right to terminate arises at all.
The approach to cure diverges in the three systems under consideration.
(1) PECL
Article 8:104 PECL provides that:
[a] party whose tender of performance is not accepted by the other party because
it does not conform to the contract may make a new and conforming tender where
the time for performance has not yet arrived or the delay would not be such as to
constitute a fundamental non-performance.
The right to cure under PECL is limited for a number of reasons. First, it is
limited to instances where the party in breach has indeed made a non-
conforming tender of performance. Delay appears to be curable only if the
party in breach has indeed made a tender to perform late. The right to cure
does not exist if the party in breach has not tendered to perform at all.
Repudiation in the sense of a total refusal to perform is therefore not curable
under this provision (it will be considered later whether it will be retractable
for other reasons).
Secondly, a mere verbal statement of intention to cure will not be suffi-
cient – a new and conforming tender must be made.
Thirdly, either the time for performance must not yet have arrived, or the
resulting delay should not be such as to constitute a fundamental non-
performance. This will depend on whether time is of the essence under the
contract, or has become of the essence by the giving and expiry of an
ultimatum notice under Article 8:104 PECL.63 Of course, the delay can also
constitute a fundamental non-performance if it would cause foreseeable
substantial detriment to the aggrieved party.
It is unclear whether Article 8:104 PECL creates a right to cure which
would override a purported notice of termination. The right to cure is not
expressly limited to instances where notice of termination has not yet been
62 Cf Treitel, Remedies, 371.

63 Comment to this Article (PECL, vol 1, 368).
given.64 By contrast, PICC, for example, specifically provides that the right to
cure is not precluded by a notice of termination.65
Is there any right to retract a repudiation under PECL? The situation is
not dealt with under Article 8:104 PECL. But the Comment to Article 9:304
PECL states that the aggrieved party may terminate on the basis of an
anticipatory breach “at any time while it remains clear that there will be a
66
fundamental non-performance”. This suggests that an anticipatory repudia-
tion may be retracted with the resultant loss of the right to terminate, as it is
then no longer clear that there will be a fundamental non-performance.
Article 9:303(3)(b) PECL also provides for loss of the right to terminate in
the case of delay. It states that, if the aggrieved party knows or has reason to
know that the other party still intends to tender within a reasonable time, and
the aggrieved party unreasonably fails to notify the other party that it will not
accept performance, it loses its right to terminate if the other party in fact
tenders within a reasonable time. Therefore, when it knows that cure of delay
is forthcoming, the aggrieved party must act swiftly if it does not wish to
accept the cure, otherwise the party in breach will have the right to cure the
delay within a reasonable time.
(2) Scots law

Scots law does not have a rule identical to that of PECL. There is, however,
authority to the effect that the right to terminate may be lost if the party in
breach tenders proper performance of a remediable breach before termina-
tion has occurred.67 Whether this also applies to breach in the form of a delay
is somewhat controversial. The Scottish case of Cumming v Brown holds that
64 See also E Clive & D Hutchison, “Breach of contract”, in Zimmermann, Visser & Reid, Mixed
Legal Systems, 176 at 202.
65 Article 7.1.4(2) PICC.
66 At 418.
67 McBryde, Contract, 521; Scot Law Com DP No 109 (1999), para 4.26 (“Where a remediable
material breach has occurred and, before the contract has been rescinded, effective performance
is tendered then the right to rescind is lost”); Cumming v Brown 1994 SLT (Sh Ct) 11 (henceforth
Cumming v Brown); Clive & Hutchison, in Zimmermann, Visser & Reid, Mixed Legal Systems at
203–204. Cf Walker, Contract, 525. McBryde (1996) 1 Edinburgh LR 43 at 63 has criticised
Cumming v Brown on the basis that it overlooked Ford Sellar Morris Properties plc v E W
Hutchison Ltd 1990 SC 34 which held that the right to resile could not have been taken away by
belated performance of the condition involved; and also that Cumming v Brown actually
encourages an innocent party to rescind before the right to terminate may be lost, which is not
conducive to the implementation of contracts. However, the Scottish Law Commission finds the
present law satisfactory and has pointed out that Ford Sellar Motors did not concern rescission for
material breach, but a right for either party to resile if a landlord’s consent was not obtained by a
certain date (Scot Law Com DP No 109 (1999), 30). Lord Marnoch, who was in the minority in J
& H Ritchie Ltd v Lloyd Ltd 2005 SLT 64, relied on Ford Sellar Motors to hold that a right to
a tender of performance after a delay causes the right to terminate to be lost

even though time was expressly made of the essence.68 Similarly, the Law
Commission does not limit its statement that a tender to cure a remediable
breach will affect the right to terminate to certain forms of breach, and it
refers with approval to Cumming v Brown in this regard.69 Although Eric
Clive and Dale Hutchison agree that the right to terminate will be lost upon
a satisfactory offer of conforming performance, they state that “[a]n offer of
late performance, where time is of the essence, is not an offer of conforming
70
performance” as “time cannot be recovered”. The question in all such cases
will be whether the breach is still remediable. MacQueen and Thomson do
not mention the principle that the right to terminate will be lost upon tender
of a remediable breach. They explain Cumming v Brown on the basis that the
71
aggrieved party was prevented from terminating on the basis of personal bar.
Scottish writers accept that a repudiation may be retracted before
72
termination has occurred. Some explain this on the basis that there is no
73
breach before acceptance of repudiation.
There have also been suggestions that the defaulting party should first be
given an ultimatum to cure,74 but the Scottish Law Commission has rejected
this proposition.75 The Commission also held that, subject to exceptions,
reject cannot be taken away by the later renewed tendering of goods in a proper condition (paras
11, 12). He explained Cumming v Brown on the basis that the seller had not invoked his option to
regard the delay as material (para 11). On the other hand, Lord Hamilton in the same decision
declined to resolve the differences between Ford Sellar Motors and Cumming v Brown, but
nevertheless held that the seller was no longer in breach after it repaired the equipment sold so
that the buyer’s attempted termination came too late (para 48).
68 The contract itself provided that timeous payment was an essential obligation and that there
would be a right to terminate after late payment 1994 SLT (Sh Ct) at 12.
69 Scot Law Com DP No 109 (1999), para 4.26.
70 Clive & Hutchison, in Zimmermann, Visser & Reid, Mixed Legal Systems at 204 n 157. They do
not refer to Cumming v Brown in this context. McBryde (1996) 1 Edinburgh LR 43 at 62, also
argues that “performance after the specified date was not performance in terms of the contract”.
71 MacQueen & Thomson, Contract at 214. The court stated, however, that personal bar did not
apply in this case (at 213). The issue of personal bar was never raised and the court stated that the
sharp and narrow question to be decided was “where one party … has acquired a right to resile,
does that right remain effective and exercisable notwithstanding a tender of performance by the
other party” (at 213). However, the court quoted Gloag, Contract, 620 who talks of the right to
reject being barred if the aggrieved party is led to the assumption that the contract still exists.
72 McBryde, Contract, 490; Gloag, Contract, 600; McBryde (1996) 1 Edinburgh LR 43 at 57;
73 MacQueen & Thomson, Contract at206.
74 Lindley Catering Investments Ltd v Hibernian Football Club Ltd 1975 SLT (Notes) 56 at 57;
Strathclyde Regional Council v Border Engineering Contractors Ltd 1998 SLT 175 at 177; cf Clive
& Hutchison, in Zimmermann, Visser & Reid, Mixed Legal Systems at 201–202; McBryde (2002)
6 Edinburgh LR 5 at 18–19; McBryde, Contract, 521–523. McBryde (1996) 1 Edinburgh LR 43
at 60, states that Lindley Catering may mean that a remediable breach is a non-material breach.
Scots law does not recognise such a right.76 One such exception is found in
Part VA of the Sale of Goods Act 1979, in terms of which a consumer must
generally have resort to the remedies of repair or replacement before seeking
rescission.77 Another exception is that of a lessee in breach being granted the
right to an ultimatum before the landlord may terminate for a monetary
breach of the lease.78
There is some authority in Scotland that remediability should be con-
79
sidered in determining whether a breach is material; this is the fourth sense
identified above in which cure can be relevant to the right to terminate. Some
authors explain the aforementioned cases that apparently accept a right to an
80
ultimatum on this basis.

South African authorities are generally less comfortable with the notion that
a tender to cure should affect the right to terminate.
Like PECL, however, two South African cases allow the breaching party in
breach to cure a non-conforming performance before the time for perform-
81 82
ance has passed, although many South African writers either fail to mention
83
or criticise this rule. The two South African cases in question suggest that
the right to cure exists despite a purported notice of termination, so that it is
a right to cure in the second sense mentioned above. One of these cases
suggests, however, that the right to cure is possibly precluded if it would
cause unreasonable inconvenience to the aggrieved party84 or if the initial
77 Section 48C. The relationship between this provision and s 15B, which allows for rescission with-
out the necessity of first seeking repair or replacement, is problematic, probably because it results
from the European Consumer Sales Directive.
78 Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, s 4. McKimmie’s Trustees v Armour
(1899) 2 F 156 also suggests that a lessor must be given a second chance to remedy damages in the
leased premises (see Scot Law Com DP No 109 (1999), para 4.10).
79 MacQueen & Thomson, Contract, 211; cf McBryde (1996) 1 Edinburgh LR 43 at 60; Clive &
Hutchison, in Zimmermann, Visser & Reid, Mixed Legal Systems at 201.
80 MacQueen & Thomson, Contract, 211.
81 Leviseur v Scott 1922 OPD 138 (henceforth Leviseur v Scott) at 141–143; Inrybelange (Edms)
Bpk v Pretorius 1966 (2) SA 416 (A) at 427B–E. Cf Clive & Hutchison, in Zimmermann, Visser &
Reid, Mixed Legal Systems at 203–204, stating that the right to terminate will be lost if, within the
time available for performance, the breaching party makes a satisfactory tender of conforming
performance.
82 Van der Merwe et al, Contract, 386; Lubbe & Murray, Contract, 583; Kerr, Contract, 703 ff.
83 De Wet & Van Wyk, Kontraktereg, 180. But see Harker, 1980 Acta Juridica 61 at 82; Christie,
Contract, 491.
84 Leviseur v Scott (note 81) at 142. Cf in this regard Article 48(1) CISG which makes the right to
cure dependent on the absence of unreasonable inconvenience to the aggrieved party.
tender of non-conforming goods has induced the aggrieved party to act to its
own detriment (in which case an estoppel may arise).85 The Appellate
Division in BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms)
Bpk86 relied on these cases to state that as long as performance remains
possible and the contract is not cancelled, the other party can still perform,
and that this possibility should be related to our doctrine of purgatio morae.87
88
There are conflicting views on whether a repudiation may be retracted.
Those against retractability point out that this proposition is supported
merely by obiter dicta, and that it derives from the rejected notion of English
law that repudiation is a thing writ in water, without any effect until accepted
by the other party, as opposed to an immediate breach giving rise to an
immediate right to cancel which should not be lost unless by the actions of
89
the aggrieved party itself. It has also been argued that allowing retraction of
repudiation causes the very uncertainty which recognition of this type of
90
breach aims to prevent. Furthermore, it is pointed out that the aggrieved
party may have acted in reliance on the power of termination, even though
notice of termination has not yet been given.91 Nienaber, on the other hand,
provides a theoretical foundation for the doctrine of retraction of repudia-
tion. He argues that, since the test for termination is whether the anticipated
malperformance would justify cancellation, a retraction of repudiation
causes the erstwhile right to cancel to disappear, as the anticipated malper-
formance will no longer occur.92 This presupposes that the time of purported
termination is decisive for establishing whether there is a right to terminate.
There is some authority in South African law that repudiation may also be
93
retracted after the date for performance has passed. A fourth view is that
85 Leviseur v Scott (note 81) at 142.

86 1979 (1) SA 391 (A) (henceforth BK Tooling).
87 At 419B–C.
88 Authorities in favour of retractability include J W Wessels, The Law of Contract in South Africa
vol II, 2nd edn by A A Roberts (1951), para 2955; De Wet & Van Wyk, Kontraktereg, 216;
Nienaber, 1989 TSAR 1 at 3, 14; De Wet v Kuhn 1910 CPD 263 at 267 (obiter). Those against
retractability include G Lubbe, “Retraction of repudiation: a doctrine writ in water?” (1996) 7
Stellenbosch LR 147; Kerr, Contract, 595–596; Christie, Contract, 627; Van der Merwe et al,
Contract, 385.
89 Lubbe (1996) 7 Stellenbosch LR 147 at 159; Kerr, Contract, 596.
90 Lubbe (1996) 7 Stellenbosch LR 147 at 161.
91 Kerr, Contract, 596.
92 Anticipatory Repudiation in English and South African Law of Contract: a Comparative Study
(1961), 432 (as cited by Lubbe (1996) 7 Stellenbosch LR 147 at 160).
93 See the cases cited by Lubbe (1996) 7 Stellenbosch LR 147 at 148 ff. De Wet & Van Wyk,
Kontraktereg, 216, do not specifically limit their view that the repudiating party may perform in
spite of the repudiation to cases where the date for performance has not yet passed.
repudiation can be retracted as long as the position of the aggrieved party has
not been altered in any way.94
Apart from the cursory reference in BK Tooling to the doctrine of purgatio
morae, there appears to be no South African authority holding that the right
to terminate will be lost if the party in “ordinary breach” (as opposed to
repudiation) purports to cure after the date for performance. Instead, some
South African writers deny that the right to terminate should be affected by
95
a tender to cure. There is clear authority that a tender of full performance
96
cannot affect a right to terminate derived from a lex commissoria, inter alia
97
because a party cannot lose the right to terminate except by its own act. It is
98
said that otherwise two competing rights would be set up against each other,
99
which would undermine the object of the lex commissoria. It has been
asked whether the same consideration should not also apply to the common
100
law residual right to terminate for breach.
South African law does not recognise a strong right to cure in the sense of
a right to be given a second chance to perform before the aggrieved party
may cancel. The only common law exception to the rule appears to be the
lessor’s right to be given an opportunity to cure defects arising in the leased
property before the lessee may cancel.101
(4) Conclusion
Scots law recognises that the right to terminate may be lost if the cure takes
place before termination. In addition, cure is a factor affecting materiality.
Repudiation may also be retracted, a notion that has found obiter support in
South African cases. There are some Scottish legislative provisions, which
oblige the aggrieved party to give the other party an opportunity to cure. In
South African law, there is only clear authority for a right to cure other types
of breach before the date for performance, although this has been criticised.
There are cogent policy arguments both in favour of and against allowing
a tender to cure to affect the aggrieved party’s right to terminate. In my view,
these opposing policy arguments can most fairly be balanced by a rule that
94 Langverwacht Farming Co v Sedgwick & Co Ltd (II) 1942 CPD 155 (obiter).
95 Van der Merwe et al, Contract, 386; cf Harker, 1980 Acta Juridica 61 at 82.
96 Schuurman v Davey 1908 TS 664 at 671–672; Pienaar v Fortuin 1977 (4) SA 428 (T); Moodley v
Reddy 1985 (1) SA 76 (D); cf Boland Bank Ltd v Pienaar 1988 (3) SA 618 (A).
97 Boland Bank Ltd v Pienaar 1988 (3) SA 618 (A) at 622 with reference to Voet, Commentarius ad
Pandectas, 22.1.31.
98 The right to cure and the right to cancel.
99 Moodley v Reddy 1985 (1) SA 76 (D) at 81E–F.
100 Lubbe & Murray, Contract, 583.
101 W E Cooper, Landlord and Tenant, 2nd edn (1994), 100.
the right to terminate will be lost if a tender to cure has been made before
termination has occurred, provided that:
1. the cure will cause no unreasonable inconvenience;
2. the resultant delay will not constitute a fundamental or material breach;
3. the aggrieved party has not yet acted in reliance on the breach;
4. damages and costs are tendered simultaneously; and
5. the cure is effected promptly.
A number of European systems recognise in some form the defaulting
102
party’s right to cure. It is also consistent with the principle of Scots and South
103
African law that the law should encourage performance of a contract, and
that termination is a drastic remedy which should not easily be granted.
104
Allowing cure also reflects the policy of minimising economic waste. The
aggrieved party’s interests are protected by the limitations on the right to
cure set out above. The aggrieved party can make an end to the uncertainty of
whether cure will take place by terminating the contract. Granting the party
in breach a right to cure that overrides a purported termination or a right to
an ultimatum goes too far in protecting the party in breach. A rule that an
ultimatum should always be given does not give due consideration to the
possibility that the aggrieved party may have lost confidence in the party in
breach, and may also tempt unscrupulous parties to perform shoddily in the
knowledge that they will be given a second chance.105
D. CONSEQUENCES OF TERMINATION
The winding-up regime set out in Articles 9:305 to 9:309 PECL has been
criticised on a number of grounds. These provisions are in some respects
overly complex and yet in others too underdeveloped to provide clear
solutions. The aspects that warrant criticism will now be compared with the
position under South African and Scots law.
(1) Mutual restitution not the point of departure under PECL

First, the PECL winding-up regime has been criticised on the basis that it
would have been simpler to require mutual restitution106 as the point of
102 See the Notes to Article 8:104 PECL.
103 Cf McBryde, Contract, 490. That this is a principle underlying PECL appears also from Articles
9:101 and 9:102 PECL, which grant a right to specific performance.
104 Cf Comment to Article 7.1.4 PICC.
106 The term “restitution” does not refer to a special type of enrichment action in this chapter, but
simply describes the recovery of a performance.
departure, and then to provide for exceptions in the case of successive or

divisible contracts such as lease, where termination only has prospective
effect,107 as well as for contractual provisions which are intended to operate
even after termination, such as arbitration and penalty clauses. Instead, the
PECL winding-up regime takes the continuous or successive contract as its
point of departure, and only provides for restitution by way of a number of
rather complicated exceptions set out in Articles 9:306 to 9:308 PECL.
Essentially, these Articles provide that restitution is only called for when no
counter-performance has been received or the counter-performance
received has been rightfully rejected. According to some Scots authors, the
same principle applies in Scots law: it is said that restitution depends on non-
108
reciprocation. By contrast, the point of departure in South African law is
simply that cancellation of a reciprocal obligation causes the counter-
obligation to be extinguished or undone, with the result that the parties must
109
restore mutually. South African law then provides for an exception where
rights have accrued which are independent of any executory part of the
contract so that the contract is divisible.110 Of course, provisions which are
intended to operate after termination, such as arbitration or penalty clauses,
are also not affected thereby.111 The approach of PICC is similar to South
African law in this regard and appears to be preferable to PECL.112
107 R Zimmermann, “Restitutio in integrum: Die Rückabwicklung fehlgeschlagener Verträge nach

den Principles of European Contract Law, den Unidroit Principles und dem Avant-projet eines
Code Européen des Contrats” in H Honsell et al, Privatrecht und Methode: Festschrift für
Ernst A Kramer (2004) (henceforth Zimmermann, in Festschrift Kramer), 735 at 741; P
Hellwege, Die Rückabwicklung gegenseitiger Verträge als einheitliches Problem (2004)
(henceforth Hellwege, Rückabwicklung) at 589.
108 H L MacQueen, “Contract, unjustified enrichment and concurrent liability: A Scots
perspective” 1997 Acta Juridica 176 at 193–195; H L MacQueen, “Unjustified enrichment and
breach of contract” 1994 JR 137 at 138, 145, 148; Scot Law Com DP No 109 (1999), paras 4.28–
4.29; cf MacQueen & Thomson, Contract, 216–217; Hogg, Obligations, 199. A Scottish case
which is at first glance contrary to the principle that restitution depends on non-reciprocation is
Connelly v Simpson 1993 SC 391, where the court refused to order restitution of a purchase
price of £16,000 for shares which were not delivered and which were worth only £400 at
termination of the contract. This decision can possibly be explained on the basis that the
shareholder got what he paid for, namely a right to claim the shares on demand and that he
therefore by implication carried the risk of a drop in value (MacQueen, 1997 Acta Juridica 176
at 195–196; MacQueen, 1994 JR 137 at 145–146).
110 Shelagatha Properties Investments CC v Kellywood Homes (Pty) Ltd 1995 (3) SA 179 (A),
summarising the principle in Walker’s Fruit Farms Ltd v Sumner 1930 TPD 394. See also Van
der Merwe et al, Contract, 379; Christie, Contract, 629.
111 Atteridgeville Town Council v Livanos 1992 (1) SA 296 (A) at 303I-306C; Christie, Contract,
629.
112 See Articles 7.3.5 and 7.3.6 PICC.

Article 9:306 PECL provides that property previously received may be
rejected by the party terminating the contract when the value of the property
has been fundamentally reduced as a result of the other party’s non-
performance. This provision applies, for example, where a contract has been
partially performed, but the performance received has become useless by
reason of the breach in respect of the rest of the performance.113 Article 9:306
PECL has been criticised for apparently excluding rejection of performance
where a seller has delivered a different object from the one foreseen by the
114
contract, which is of the same value as the promised performance. For this
reason, Article 9:306 PECL should rather have provided that performance
115
may be rejected where it is defective or does not comply with the contract.

Article 9:307 PECL provides that on termination of the contract a party may
recover money paid for a performance which it did not receive or which it
properly rejected. According to Article 9:308 PECL a party which has
supplied property that can be returned and for which it has not received
payment or other counter-performance may on termination of the contract
recover the property.
Both Articles have been criticised for focusing on something similar to the
Common Law requirement that the aggrieved party must have suffered a
“total failure of consideration” before it may reclaim an advance payment.116
This criticism is more cogent concerning Article 9:308 PECL as that Article
does not provide for the possibility of rejection of defective performance with
a resultant duty to make restitution as does Article 9:307 PECL. As Article
9:308 PECL reads now, only a total failure of counter-performance will lead
to restitution.
In any event, the South African rule, which simply requires mutual
restitution, is preferable.
113 Comment to Article 9:306 PECL.

114 Hellwege, Rückabwicklung, 590.
115 Hellwege, Rückabwicklung, 590.
116 Hellwege, Rückabwicklung, 590–591; Zimmermann, in Festschrift Kramer at 741; R Zimmer-
mann, Die Principles of European Contract Law als Ausdruck und Gegenstand europäischer
Rechtswissenschaft (2003) at 9.

On termination of the contract a party which has rendered a performance
that cannot be returned and for which it has not received counter-perform-
ance may recover a reasonable amount for the value of the performance to
the other party. This is provided by Article 9:309 PECL. The impossibility of
restitution may arise either because the benefit received was the result of
work that cannot be returned or with regard to which restitution is too
117
onerous, or because property transferred has been used up or destroyed –
but for which the receiving party has not been paid.118
It is clear that under Article 9:309 PECL an inability to restore, whether
attributable to the acts of the recipient or not, is not a bar to termination.119
Article 9:309 PECL is somewhat underdeveloped, however, and does not
provide a clear solution to the situation where non-conforming property
which may be rejected has been destroyed. The following example illustrates
the problem: suppose a boat owner has refrigeration equipment installed in
his boat that is guaranteed to operate properly for a certain period of time.
The equipment does not function at all upon the first attempt to use it out at
sea, and the boat owner resolves to terminate the contract. However, before
he is able to do so the boat sinks in an unexpected gale and the refrigeration
equipment is lost. Suppose the breach is serious enough to justify termin-
ation. Since restitution is not a condition precedent for termination under
PECL, the boat owner may terminate, but does he owe something to the
120
person who installed the refrigeration equipment for its value? It is not
clear from Article 9:309 PECL at what stage the “reasonable amount for the
121
value of the performance to the other party” must be determined. On the
one hand, Article 9:309 PECL may mean that even where the performance
has been consumed, lost or destroyed, the value of the performance to the
recipient at the time it was received must be returned.122 In favour of this
interpretation is the statement in the Notes to Articles 9:305 to 9:309 PECL
that the Principles are broadly in accordance with systems which take a

119 Notes to Articles 9:305–9:309 PECL.
120 The example is based on the facts of Hall-Thermotank Natal (Pty) Ltd v Hardman 1968 (4) SA
818 (D) (henceforth Hall-Thermotank).
121 C Coen, Vertragsscheitern und Rückabwicklung (2003) (henceforth Coen, Vertragsscheitern)
at 308.
122 Cf § 346 BGB, which also provides for “Wertersatz”, and according to which the value of the
performance at the time of performance must be restored (see A Teichmann, in O Jauernig
(ed), Kommentar zum BGB, 10 edn (2003), § 346 Rn 4 and Rn 6).
liberal approach to restitution after termination and thus enable the court or
arbitrator to order full restitution of benefits received. On the other hand, the
value at termination may be intended, so that if the recipient has lost the
performance without having received any benefit therefrom, he need not
restore anything. Comment A to the Article refers to a party being “left with
a benefit which cannot be returned” which seems to support this inter-
123
pretation. To similar effect is Comment B, which refers to the amount by
124
which a party has been enriched. Under the South African and Scots laws
of enrichment, for example, there is a defence of change of position or loss of
enrichment, which would put the risk of accidental destruction of property
on the transferor, and thus on the person who installed the equipment in this
125
instance. Of course, had it been the party in breach who had destroyed or
lost the property, a damages claim would compensate the aggrieved party for
loss of his performance in such a case. But the position where it is the
aggrieved party who has lost the property remains unclear under PECL.
Another aspect on which Article 9:309 PECL is unclear concerns the
situation where the actual value of the performance to the recipient is much
higher than the contract price – that is where the performing party has made
a bad bargain. However, the example in the Comment makes it clear that in
such case the recipient need only restore an appropriate part of the purchase
price.126 An important qualification such as this should rather have been
contained in the Article itself.
(a) Comparison with South African law

The South African rules dealing with an inability to return in kind are far
more complex than Article 9:309 PECL.
It is trite that if by the very nature of the performance received, literal
restoration is not possible, as where services have been rendered, the value of
123 Comment A to Article 9:309 PECL; Coen, Vertragsscheitern at 308.

125 N R Whitty and D Visser, “Unjustified enrichment”, in Zimmermann, Visser & Reid, Mixed
Legal Systems, 399 at 435; Bell, Principles, § 537; Cantiere San Rocco v Clyde Shipbuilding and
Engineering Co 1923 SC (HL) 105 at 111 per Lord Birkenhead. Eric Clive contends, however,
that, contrary to what Bell and Cantiere hold, the risk of accidental destruction does, or should,
lie with the transferee since ownership has passed to him and the owner bears the risk of loss (E
M Clive, Draft Rules on Unjustified Enrichment and Commentary, prepared for Scottish Law
Commission (1996) (henceforth Clive, Draft Rules), Schedule, para 2(2)(a) and (b), comment,
example 3).
126 At 426.
the performance must be restored.127 In other instances, there has been some
support in South African law for a principle that the ability to restore
performance is a condition precedent for termination.128 This principle was
then subjected to a number of qualifications based on the idea that
restitution is required only as far as it is equitable.129 However, in the context
of rescission for improperly contained consent, the Supreme Court of Appeal
has made it clear that restitution is not a condition precedent but rather a
130
consequence for the act of rescission, although a tender of restitution, or an
explanation and excuse for its failure is a requirement for a claim for
131 132
restitution. This view should also apply in the breach of contract context.
As Clive and Hutchison point out, there is often no policy reason for denying
termination provided that a suitable adjustment of economic imbalances by
133
way of monetary compensation can be arranged.
Examples of cases where the courts have held it to be inequitable to
require restitution include the situation where the property received has
134
perished as a result of the inherent defect complained of or during the
135
normal intended use of the property. It has also been held to be inequitable
to require restitution where it has become impossible through no fault of the
aggrieved party, provided that that party does not gain an advantage from the
performance.136 Thus a boat owner in circumstances similar to those descri-
bed above was held to be entitled to terminate without having to compensate
the other party for the refrigeration equipment lost at sea.137
There are instances where the recipient must restore the value of a
127 Harker, 1980 Acta Juridica 61 at 100; Spencer v Gostelow 1920 AD 617. The claim has been said
to be based on unjustified enrichment in that context (BK Tooling (note 86) at 424), but the
better view is that it is contractual in nature (S Miller, “Unjustified enrichment and failed
contracts”, in Zimmermann, Visser & Reid, Mixed Legal Systems, 437–468). A full consider-
ation of this controversy is beyond the scope of this chapter.
128 Van der Merwe et al, Contract, 374; Harker, 1980 Acta Juridica 61 at 100; Uni-Erections v
Continental Engineering Co Ltd 1981 (1) SA 241 (W) at 247G, 248A. Cf Walker, Contract, 558
who states that where innocent third parties have acquired rights for consideration in the subject
matter of the contract, e.g. where a buyer has resold goods, rescission is precluded in Scots law.
130 Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd 1999 (2) SA 719 (SCA) at 731E–G, 732A–D.
131 At 732B.
132 Although Van der Merwe et al, Contract, do not mention the Extel case, they refer to other cases
decided in the context of rescission for improperly obtained consent as if the same principles
should apply in both contexts.
133 Clive & Hutchison, in Zimmermann, Visser & Reid, Mixed Legal Systems at 205–206.
134 Cf Marks Ltd v Laughton 1920 AD 12.
135 African Organic Fertilizers & Associated Industries Ltd v Sieling 1949 (2) SA 131 (W).
136 Hall-Thermotank (note 120); Van der Merwe et al, Contract, 374; Harker, 1980 Acta Juridica 61
at 100–101; Lubbe & Murray, Contract, 592.
137 Hall-Thermotank (note 120).
performance that cannot be returned. For example, if a party has gained an

advantage from the performance which cannot be returned, he has to restore
that benefit or a monetary substitute for it.138 If owing to the fault of the
aggrieved party restitution is not possible in specie but remains substantially
possible, termination will be possible if the shortfall is supplemented by
payment in money.139 Some authors hold that where it is the party in breach
who is unable to return the performance received, he must always pay a
surrogate for the performance, regardless of whether he has obtained any
140
benefit from the performance. This duty is regarded as part of the process
141
of restitution and not as ordinary damages.
(b) Comparison with Scots law

Apparently, restitution in kind is not generally considered to be a condition
precedent for termination in Scots law, but merely as a consequence of
142
termination. Certainly, a substitutive claim for restitution of the value of a
143
performance that cannot be returned by reason of its very nature is allowed.
Whether this claim is based on unjustified enrichment or the law of contract
144
is controversial, but the better view is that it is a contractual claim, despite
the Law Commission’s suggestion that enrichment analysis should govern the
consequences of termination.145
138 Harper v Webster 1956 (2) SA 495 (FC); cf Theron v Africa 10 SC 246.
139 Van der Merwe et al, Contract, 375; Harper v Webster 1956 (2) SA 495 (FC).
140 De Wet & Van Wyk, Kontraktereg, 244 n 236; Lubbe & Murray, Contract, 593 n 5; Van der
Merwe et al, Contract, 383.
141 De Wet & Van Wyk, Kontraktereg, 244 n 236; Lubbe & Murray, Contract, 593 n 5; Van der
Merwe et al, Contract, 383.
142 Clive & Hutchison, in Zimmermann, Visser & Reid, Mixed Legal Systems at 206; McBryde,
Contract, 480; Hellwege, Rückabwicklung, 346, 348, 354, 357, and P Hellwege, “In integrum
restitutio and the requirement of counter-restitution in Roman Law” 2004 JR 165 at 171, 176,
suggest that it is not a condition precedent, whereas P Hellwege “Unwinding mutual contracts:
restitutio in integrum v the defence of change of position” in Johnston & Zimmermann (eds),
Unjustified Enrichment at 255, states that it is a requirement in the case of defective goods sold.
See also MacQueen, 1994 JR 137 at 148, cf at 138. According to Miller, in Zimmermann, Visser
& Reid, Mixed Legal Systems at 449, Scots law prevents termination for breach when the
aggrieved party cannot return a performance received, but there have been calls for restitution
by way of monetary surrogate. However, the authorities Miller lists are concerned with
reduction or rescission of a voidable contract and not with termination for breach.
143 See, e.g., Ramsay v Brand (1895) 25 R 1212.
144 See, e.g., Miller, in Zimmermann, Visser & Reid, Mixed Legal Systems; Hogg, Obligations, 201–
202; J A Dieckmann and R Evans-Jones, “The dark side of Connelly v Simpson” 1995 JR 90 at
100; McBryde, Contract, 524–525; H L MacQueen, “Unjustified enrichment” in C Ashton et al,
Fundamentals of Scots Law (2003), 267 at 306.
145 Scot Law Com No 174 (1999), paras 7.23–7.24. See also Watson v Shankland (1871) 10 M
142 at 152. A number of cases hold that the party in breach cannot sue on the contract but must
How would Scots law treat the example of the boat owner who has lost the
performance received? Must he restore the value of the boat upon reclaiming
the price? First, if the boat owner can be said to have had a reasonable oppor-
tunity to examine the equipment to ascertain its conformity, he would lose
the right to reject the goods on the basis that he had accepted them as
provided for in the Sale of Goods Act.146 The buyer could probably have tested
the equipment before going out to sea and on this basis has lost the right to reject.
Suppose, however, that the defect manifested itself before the buyer could
be said to have accepted the goods, that it was serious enough to warrant
rejection, but that the goods had been accidentally destroyed before termin-
ation took place. The majority view is that the risk of accidental destruction
does not pass to the buyer where defective goods are delivered and then
147
rejected by the buyer, and so the buyer would still be allowed to terminate.
Michael Bridge, however, argues that it would be fairer if the risk of interim
loss arising from events unconnected with the non-conforming character of
the goods should remain with the buyer, with the implication that the buyer
may not terminate.148 If one were to follow the former view it has to be asked
whether the seller is entitled to the value of what he performed so that ultim-
ately this is deducted from the purchase price claimed by the buyer. There
seems to be no clear case law on this issue in the breach of contract context.
Robin Evans-Jones contends that a party who is unable to return the
object itself upon termination has to offer its value.149 This is based on the
idea that the parties must be placed into the position in which they were
150
before the transaction was performed (restitutio in integrum). Since the
purpose of the rules on restitution after termination is to prevent unjustified
151 152
enrichment, one answer might lie in the application of enrichment rules.
However, the weight of authority on restitution of corporeal property is to the
base its claim on unjustified enrichment (e.g. Steel v Young 1907 SC 360; Forrest v Scottish
County Investment Co Ltd 1916 SC (HL) 28 at 39).
146 Sale of Goods Act 1979, s 35; see further P S Atiyah, J N Adams, H MacQueen, The Sale of
Goods, 11th edn (2005) (henceforth Atiyah et al, Sale of Goods), 513–515.
147 Atiyah et al, Sale of Goods, 356.
148 M G Bridge, The Sale of Goods (1997), 125.
149 Robin Evans-Jones, Unjustified Enrichment, vol 1 (2003), 316–317; cf Hellwege, Rückab-
wicklung, 600.
150 Hogg also holds that a substitutive claim would lie if the property has been consumed or
transferred to a third party (Obligations, 201–202).
151 MacQueen, 1997 Acta Juridica 176 at 192–193.
152 Clive & Hutchison, in Zimmermann, Visser & Reid, Mixed Legal Systems, at 206, suggest that
contract law could usefully adopt or refer to enrichment rules to provide a solution in this
context.
effect that the risk of accidental destruction lies with the transferor.153 On this
view, the seller would not have a claim for the value of the goods lost based on
unjustified enrichment. Once again there is a contrary view: Eric Clive
contends that the risk of accidental destruction should lie with the transferee
since, first, ownership has passed to him and the owner, generally, bears the
risk of loss and, secondly, the transferor would have acted reasonably if he
154
cancelled his insurance.
(c) Evaluation
It is commendable that Article 9:309 PECL does not treat restitution in kind
as a condition precedent for termination. Article 9:309 PECL operates fairly
where the performance cannot be returned by reason of its very nature, such
as in the case of services rendered.
The problem of accidental destruction of property in the hands of the
aggrieved party, however, on which Article 9:309 PECL and Scots law are not
155
clear, is not easily resolved. On the one hand it may be argued that breach
justifies a differential treatment of the party in breach and the aggrieved
party, so that the aggrieved party should be excused from paying anything for
the lost property, provided it has exercised the degree of caution which it
would have exercised in its own affairs. On the other hand, breach is not
always accompanied by fault and may not be a suitable reason to subvert the
normal incidence of risk, which should run with physical control of the
property involved.156 This implies that the recipient should carry the risk of
accidental destruction and should therefore compensate the performing
party for the value of its performance if restitution in kind becomes impos-
sible as a result of no fault of either party. Another argument in favour of the
risk of accidental destruction resting on the recipient of the performance is
that the recipient can be expected to insure the property, whereas the
transferor may reasonably have cancelled his insurance.
On balance, the best solution would be for the recipient to carry the risk of
accidental destruction so that he has to pay a monetary substitute if resti-
157
tution in kind is not possible. Accordingly, the recipient should always be
153 Bell, Principles, § 537; Cantiere San Rocco v Clyde Shipbuilding and Engineering Co 1923 SC
(HL) 105 at 111 per Lord Birkenhead.
154 Clive, Draft Rules, Schedule, para 2(2)(a) and (b), comment, example 3.
155 Cf Miller, in Zimmermann, Visser & Reid, Mixed Legal Systems at 449.
156 Miller, in Zimmermann, Visser & Reid, Mixed Legal Systems at 449; Zimmermann, in Fest-
schrift Kramer at 753.
157 Zimmermann, in Festschrift Kramer at 753. Hellwege, 2004 JR 165 argues that this was most
likely the position in Roman law.
forced to restore the value of what he has received, except where, first, the
impossibility to restore is attributable to the other party, i.e., for example,
where an inherent defect for which that other party is responsible has led to
the destruction, and, secondly, where the damage would have occurred
anyway if the property had been in the hands of the claimant.158 Article 9:309
PECL should be rewritten to provide for these exceptions.
(5) Calls for unified winding-up regime

There have been calls for the same winding-up regime to apply to all instances
where the contract is either void, or avoided, or terminated.159 In my view, as
in that of Saul Miller, there are valid reasons for distinguishing between these
various instances of contractual failure. For example, in the case of voidable
contracts, the fact that the aggrieved party is innocent whereas the other party
is blameworthy may justify treating the aggrieved party who accidentally lost
the property he had received more favourably than the other party. Breach,
160
on the other hand, is not always accompanied by moral culpability. The fact
that the contractual nexus is not completely extinguished by termination for
breach also justifies a different treatment from the case where the contract is
avoided. Thus, the contract price should be the limit of the amount
161
recoverable for the value of the performance upon termination for breach,
a principle which does not apply where the contract is voidable due to
improperly obtained consent. There is also arguably a stronger argument for
giving effect to the contractual allocation of risk in breach of contract cases.162
E. CONCLUSION
The PECL provisions on termination for non-performance are similar to
Scots and South African law in a number of important respects, not sur-
prisingly in view of the Common Law influence in all three systems. The right
to terminate is exercised by notice, and recourse to a court is not, therefore,
required. In some respects termination only operates prospectively in all
158 Cf Zimmermann, in Festschrift Kramer, at 753–754.

159 Zimmermann, in Festschrift Kramer at 753–754; Hellwege, Rückabwicklung, 599; Hellwege, in
Zimmermann & Johnston, Unjustified Enrichment at 262 ff.
160 Miller, in Zimmermann, Visser & Reid, Mixed Legal Systems at 468. Zimmerman mentions a
possible exception to the duty to repay the value of a lost performance where the other party has
fraudulently induced the recipient to enter into the contract (in Festschrift Kramer at 754). If
this exception were allowed, there would essentially be two different regimes for winding up a
contract.
162 Miller, in Zimmermann, Visser & Reid, Mixed Legal Systems at 468.
three systems. All three systems know the concept of fundamental or

material breach, although PECL defines this concept more clearly. Under all
three systems a non-fundamental delay may be elevated into a fundamental
one by an ultimatum, and all three know the concept of anticipatory breach.
However, the solutions adopted by PECL also differ from those of Scots
and South African law in a number of respects. The most prominent
examples are: the clearer and more extensive definition of “fundamental non-
performance”; the validity of an unreasonable ultimatum in the case of delay
163
that will simply become effective after a reasonable time; the right to cure
a delay of performance, provided that the delay does not constitute a
fundamental breach; the acceptance of the receipt theory in respect of the
notice of termination;164 and the detailed rules on when a right to terminate
165
will be lost by reason of the lapse of a reasonable time.
In some instances, PECL and Scots law have similar rules whereas South
African law displays a different approach. For example, the more fragmented
concept of breach of contract under South African law is in contrast with the
unitary concept of “material breach” known to PECL and Scots law.
However, some Scots courts and lawyers also distinguish between different
types of breach in their discussion of what constitutes material breach. In
addition, Scots law and PECL are more comfortable with the notion that the
cure of a breach may affect the right to terminate than is South African law. In
both PECL and Scots law, there is a principle that restitution depends on
non-reciprocation, whereas the point of departure in South African law is
that mutual restitution must take place except where rights have accrued
independently of the executory part of the contract.
In one instance it is Scots law that diverges from a solution found in both
PECL and South African law, for Scots law alone does not allow the
aggrieved party to demand an adequate assurance of performance, failing
which the aggrieved party may terminate.
Concerning the issues on which the systems diverge, the solutions of
PECL are certainly worth consideration, although in a number of instances
some variation might make them more attractive for adoption in Scots and
South African law.
165 Article 9:303 PECL. Scots and South African law, on the other hand, enquire whether the lapse of
a reasonable time shows that the aggrieved party has made an election, or has waived the right to
terminate or is barred from terminating on the basis of personal bar or estoppel. Mahabeer v
Sharma 1985 (3) SA 729 (A) at 736; Van der Merwe et al, Contract, 384; Christie, Contract, 628;
McBryde, Contract, 521; Walker, Contract, 521, 557–558; Gloag, Contract, 620; Cumming v
Brown (note 67).
12 Assignment
Gerhard Lubbe
A. INTRODUCTION
B. ASSIGNMENT UNDER SCOTS AND SOUTH AFRICAN LAW
C. ASSIGNMENT UNDER PECL
(1) PECL’s concept of assignment
(2) The obligationary aspect: effects of an assignment as between assignee
and debtor (Section 3)
(3) Proprietary aspects: Priorities as between assignee and competing
claimants
(4) Immediate effects of assignment as between assignor and assignee
(5) PECL provisions in perspective
D. PRACTICAL UTILITY OF THE ASSIGNMENT REGIME OF
PECL
E. THEORETICAL NATURE OF ASSIGNMENT UNDER PECL
F. CONCLUSION
A. INTRODUCTION
Throughout Europe, assignment is understood as involving a transfer of a
personal right of a creditor to a third party (the assignee), the latter, replacing
the former (the assignor) as creditor in respect of the related obligation.1
Common also is an understanding of assignment as an institution that straddles
2
both the law of property and the law of obligations. As a disposition by a
creditor of an incorporeal asset, assignment is an institution of the law of
property. Because it in addition effects a substitution of creditors, assignment
also reveals affinities with the law of obligations. It is accordingly not
surprising that although national solutions might differ in matters of detail,
comparative treatments are readily able to deal with assignment in the
3
European context by means of a common conceptual vocabulary. The
1 H Kötz & A Flessner, European Contract Law, vol 1 (Formation, Validity and Content of
Contracts and Third Parties) (1997) (henceforth Kötz & Flessner, European Contract Law), 265.
2 P Nienaber & G Gretton, “Assignation/Cession”, in Zimmermann, Visser & Reid, Mixed Legal
Systems, 788.
3 Kötz & Flessner, European Contract Law, 262–284.
307
assignment regimes of the various national systems also address common

concerns of policy. The need to ensure that rights are freely disposable
without having to obtain the consent of the debtor is balanced by a shared
concern to ensure that the debtor’s position is not rendered more
burdensome by the assignment. The interests of would-be assignees must
also be protected against subsequent disposals by the assignor and balanced
against those of creditors seeking to attach the assets of the assignor and
parties interested in his insolvency. There is, accordingly, some basis for a
presumptio simulitudinis in respect of the broad outlines of the European
4
understanding of this part of law.
The assignment provisions of PECL (in Part III, Chapter 11) endeavour to
5
provide a framework of basic, general doctrinal concepts (Grundregeln) to
6
address similar concerns. A range of provisions providing for the free
disposal by creditors of their claims untrammelled by formality or any veto by
7
the debtor are balanced by measures to ensure that the debtor’s position is
8
not prejudiced. Although provisions along these lines are “commonplace” in
other international instruments,9 it is evident that PECL is not only fully
abreast with international developments but sets a high standard for attempts
at the development of a uniform law of assignment.10
These aspects will not be discussed here. Instead, the focus is on the
tension between the basic themes of the mobility of claims and the need for
debtor protection: the more readily claims are assignable untrammelled by
11
formality, the greater the risk that the debtor might be compromised. The
balancing of these competing demands is traditionally effected by means of
the basic understanding of what an assignment is (the Abtretungsmechan-
12
ismus), i.e. how it is effected and its legal consequences. The notion that
rights are freely transferable by mere agreement results in a real risk that a
debtor may be prejudiced by performing to the assignor, who, being a third
party, is incapable of releasing the debtor. If, on the other hand, the debtor is
4 M W Hesselink & G J P de Vries, Principles of European Contract Law (2001) (henceforth

Hesselink & de Vries, European Contract Law), 30.
5 R Zimmermann, Die Principles of European Contract Law als Ausdruck und Gegenstand
Europäischer Rechtswissenschaft (2003) (henceforth Zimmermann, Principles), 13, 15.
6 PECL, vol 2, 85.
7 See H Eidenmüller, “Die Dogmatik der Zession vor dem Hintergrund der internationalen
Entwicklung” (2004) 204 Archiv für die civilistische Praxis 457 at 463–473.
8 Eidenmüller (note 7 above) at 483–491.
9 Eidenmüller (note 7 above) at 498–499.
10 Eidenmüller (note 7 above) at 466 ff; cf 499–500; cf 501.
11 Eidenmüller (note 7 above) at 462; cf 483.
12 Eidenmüller (note 7 above) at 483.
assignment 309
to be protected by requiring notice as a formality, or even by making the

assignment dependent on his or her consent, the mobility of claims will be
adversely affected.13 It is proposed to investigate the interrelationship
between the mobility of claims and debtor protection on the one hand and
the basic understanding of mechanisms of assignment and its effects on the
other hand. It is precisely at this level that the treatment of assignment in
PECL faces its greatest challenges.
The shared understanding in European legal systems of the theoretical
nature of assignment and the agreement on the concerns to be addressed
does not extend to the manner in which assignments are made. Although all
systems agree that assignment has as its base an agreement to this effect
14
between the assignor and assignee, there is a fundamental divide between
systems which regard such an agreement as sufficient to effect the transfer of
the right and those which require a further formality, namely that the
assignment should be intimated to the debtor, or in the absence thereof, be
15
acknowledged by him or her.
The challenge to the draftsmen of PECL of this dichotomy should not be
underestimated. The divergence is of a fairly technical nature and so deeply
embedded in the respective legal systems that a uniform approach will be
hard to come by. It furthermore concerns matters of considerable practical
importance. A wide range of assignment-based practices16 is of enormous
economic significance in the modern commercial context, especially as
17
mechanisms for securing the extension of credit. The emergence of a range
18
of international instruments intended to provide uniformity in this area
13 P M Nienaber, “The inactive cessionary” 1964 Acta Juridica 99.

14 The “cessionary act” (Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems
at 789), which must be distinguished from an obligationary undertaking to assign.
15 For an overview, see Kötz & Flessner, European Contract Law, 263–284; F Ranieri, Europaisches
Obligationenrecht (2003) (henceforth Ranieri, Obligationenrecht), 435–436; Nienaber & Gretton,
in Zimmermann, Visser & Reid, Mixed Legal Systems at 790–791.
16 For an overview, see paras 7–13 of the UNCITRAL Secretariat’s Analytical Commentary on the
Draft Convention on Assignment of Receivables in International Trade, UN Commission on
International Trade Law, 34th Session, UN Doc. A/CN/. 9/489 and Add 1 (2001) (http://
www.uncitral.org); Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 at 458–459.
17 Eidenmüller at 458–459; S V Bazinas, “Lowering cost of credit: the promise in the future
UNCITRAL Convention on the Assignment of Receivables in International Trade” (2001) 9
Tulane Journal of International and Comparative Law 259; G McCormack, Secured Credit under
English and American Law (2004) (henceforth McCormack, Secured Credit), 209; I Davies, “The
reform of English personal property security law: functionalism and Article 9 of the Uniform
Commercial Code” (2004) 24 Legal Studies 295 at 296.
18 See, e.g., the UN Convention on Assignment of Receivables in International Trade 2001; the
UNIDROIT Convention on International Interests in Mobile Equipment 2001 (Cape Town
Convention); and the UNIDROIT Convention on International Factoring 1988 (Ottowa
bears witness not only to the significance of assignment practices in the

transnational context and the need for the development of uniform rules in
this regard,19 but also to the reluctance to depart from national solutions.20
This contribution will in the first instance consider how an assignment is
effected under PECL and its consequences and the extent to which the
divergence between systems based on notice and those that do not require it
is resolved. A second area of enquiry relates to the practical utility of the
PECL chapter on assignment. Zimmermann has suggested that Part III of
PECL, and in particular also the treatment of assignment, go beyond the
tentative steps towards a codification of European contract law evident in
Parts I and II. The question therefore is whether the PECL assignment
regime can accommodate practical demands by establishing a doctrinal
framework that rivals national legal systems in detail and the potential for
21
practical application. Finally, some remarks will be addressed to the
implications of PECL’s treatment of assignment for the theoretical
understanding of this phenomenon.
These questions will be considered against the background of an overview
of the manner in which the mixed legal systems of Scotland and South Africa
have developed a synthesis between conflicting impulses and influences that
inform the law of assignment.
B. ASSIGNMENT UNDER SCOTS AND SOUTH AFRICAN LAW

Both Scots and South African law portray assignment as involving the
transfer of a personal right from a creditor to a third party transferee. There
are, however, marked differences about how this is to be achieved. Although
both systems require a so-called “cessionary act”, consisting of a transfer
22
agreement, i.e. an agreement to make over and to receive the subject matter,
the significance attached to a notice to the debtor of the assignment is
markedly different. According to South African law the debtor need not parti-
cipate in or be aware of the cession of the right: the mere transfer agreement
Convention). Apart from PECL, restatements of the law of assignment are to be found in the
UNIDROIT PICC 2004 and the draft European Contract Code of Academy of European Private
Lawyers (Gandolfi Draft).
19 Zimmermann, Principles, 39.
20 See the overview of the drafting of the UN Convention on Assignment of Receivables in
International Trade by M E Trager, “Towards a predictable law on international receivables
financing: The UNCITRAL Convention” (1999) 31 International Law and Politics 611.
21 Zimmermann, Principles, 8.
22 Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems at 789–790, 791.
assignment 311
suffices to pass the right from the patrimony of the cedent to that of the
cessionary (the proprietary aspect of cession), who thereby also becomes
substituted as creditor in the cedent’s stead (the obligationary aspect).23
In Scots law, on the other hand, the transfer agreement is not enough.
According to Nienaber and Gretton:
Notice to the debtor is a substantive requirement for the transfer of the right and
the substitution of creditors. Absent such notice, the transfer as such is ineffectual
and the claim remains vested in the cedent. It passes only when intimation is made
24
to the debtor.
As in South African law, an assignment has a dual effect, but both the obli-
gationary operation of the assignment, i.e. the substitution of the creditor and
its patrimonial effect, i.e. the transfer of the right, is triggered by intimation
rather than the mere transfer agreement.
Importantly, the notion of a transfer of a right from the assignor to the
assignee is, in both systems, a functional one, explanatory of the operation of
the assignment. Because of the transfer of the right, the assignee becomes
creditor, enjoying the title to sue and having the capacity to effect a discharge
of the debtor by accepting performance, granting a release or concluding a
compromise. This is also the case in respect of the patrimonial consequences
of the assignment. Once a transfer has been effected, by mere agreement in
South Africa or by intimation in Scotland, the assignee is protected against
the attachment of the subject matter at the hands of a creditor of the assignor.
Because there is nothing left in the hands of the assignor to be taken after a
transfer has been effected, the assignee is, subject to the provisions of
insolvency legislation, also insulated against the insolvency administrator of
the assignor where sequestration intervenes after the assignment becomes
effective. The notion of an assignment as a transfer of the right is also of
decisive importance in respect of multiple disposals of the right by the
assignor. In South African law, a full, out and out cession deprives the cedent
of an interest in the subject matter of the cession, so that the same right
cannot, in principle, be ceded twice over to different persons. In Scotland,
the assignor remains creditor until intimation and accordingly still capable of
a further assignment. The rule here is one of priority of intimation. Notice to
the debtor extracts the right from the patrimony of the assignor so that there
23 S Scott, The Law of Cession, 2nd edn (1991) (henceforth Scott, Cession), 101–102, 103.
24 In Zimmermann, Visser & Reid, Mixed Legal Systems at 796; McBryde, Contract, paras 12-100,
12-104, 12-105. Alternatively, in the absence of intimation, the debtor is required to have acknow-
ledged the assignment. See Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal
Systems at 790, 792; 801–802.
is thereafter nothing that a further assignee can acquire by intimation.25

In a seemingly axiomatic way, therefore, both systems use the notion of
transfer to explain the consequences of assignment.
C. ASSIGNMENT UNDER PECL

(1) PECL’s concept of assignment
Despite the assertion that the assignment of a contractual claim involves “a
transfer of a right to performance”,26 there is in the General Principles, as
elaborated in Section 1 of Chapter 11, no express statement to this effect.
This proposition, and the corollary that an assignment is effected by
27
agreement, is only obliquely apparent from Article 11:101 PECL. The
adherence to the transfer construction is made explicit only in Article
11:201(1) PECL, which provides that an assignment of a claim transfers to
the assignee all the assignor’s rights to performance in respect of the claim
assigned. This provision, coupled with the assertion in the commentary that
28
“[t]he assignee becomes the new holder of the claim”, and the provision
29
that an assignment is effected informally, project an image of assignment
that is seemingly familiar to South African lawyers.
The assignment regime of PECL differs fundamentally from that of South
African law, however. Article 11:201 PECL is applicable only to the relations
between the assignor and assignee.30 This is not apparent from the text of the
provision, but follows from the fact that Article 11:201 PECL is placed under
the rubric “Effects of Assignment as between Assignor and Assignee” in
Section 2. The structure of Chapter 11, it seems, provides a key to an
understanding of assignment under PECL. Section 3 deals with the effects of
an assignment as between the assignee and the debtor, and the “Order of
Priority between Assignee and Competing Claimants” is considered in
Section 4. The latter two sections, respectively, reflect the obligationary and
25 See, generally Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems at 796–
801.
26 PECL, vol 2, 85.
27 An assignment involves an “agreement” (Article 11:101(1) and (2) PECL), in respect of contrac-
tual and “other transferable claims” (Article 11:101(2) PECL). That it entails a transfer of a right
is apparent from Article 11:101(3) and (4) PECL and the contrast in Article 11:101(5) PECL
between assignments on the one hand and “grants by agreement” of a right of security over a
claim.
28 PECL, vol 2, 98.
30 PECL, vol 2, 98.
assignment 313
proprietary dimensions of an assignment, i.e. consequences relating to the

substitution of the creditor and the shifting of asset from the patrimony of the
assignor to that of the assignee.
The substantive provisions of PECL as regards the effect of an assign-
ment, therefore, operate in three dimensions. These sections must be con-
sidered seriatim and related to the basic points of departure in Section I in
order to obtain a complete impression of assignment under PECL.
(2) The obligationary aspect: effects of an assignment as between

assignee and debtor (Section 3)
Despite the very general thrust of Article 11:201 PECL, the commentary
asserts that “the assignment does not by itself oblige the debtor to perform in
favour of the assignee”, such an obligation arising “only where the conditions
31
set in Article 11:303 are satisfied”. From the latter provision it is evident
that a debtor “is bound to perform in favour of the assignee if and only if the
32
debtor has received a notice in writing”. This is a formality in the true sense
33
of the word, a “prerequisite to enforcement” with substantive legal effect.
Until notice, the obligationary nexus persists between the assignor and
debtor, so that performance by the debtor to the assignor discharges the
debt.34 Prior to notice in terms of Article 11:303(1) PECL, the title to sue
remains vested in the assignor and the assignee is a third party as regards the
debtor. Although under PECL, either the assignor or assignee may give
notice, it is only notice by the former that renders the debtor immediately
liable to the assignee. Notice by the assignee is subject to the requirement
that the debtor may, within a reasonable time, request the assignee to provide
reliable evidence of the assignment. Until then the debtor is entitled to with-
35
hold performance from the assignee. Notice, accordingly, substitutes the
assignee as creditor in place of the assignor, but where notice is given by the
assignee, the claim is suspended should the debtor require reassurance.
The impression, therefore, is that an assignment of itself merely vests in
the assignee a power to substitute him or herself as a creditor by means of a
36
notice to the debtor where the assignor does not do this. Articles 11:301 and
31 PECL, vol 2, 98.

32 The effect of notice is subject to Articles 11:301, 11:302, 11:307, 11:308 (see Article 11:303(1)
PECL).
33 PECL, vol 2, 111.
36 This is in accordance with Scots law: Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed
Legal Systems, 790–791.
11:302 PECL confirm this. They deal, respectively, with contractual

prohibitions of assignment and claims of a personal nature which cannot be
assigned without the consent of the debtor. By providing that an assignment
contrary to a contractual prohibition is “not effective against the debtor”
(Article 11:301 PECL) and that absent the debtor’s consent an assignment
falling within the ambit of Article 11:302 PECL is “ineffective against the
debtor”, it is suggested that in other cases an assignment does have some
effect as against the debtor even in the absence of notice. What this consists
in, appears from the comment that “[t]he effect of a prohibition on
assignment is that the debtor is not required to recognise the status of the
assignee and can ignore any notice of assignment and give performance to
37
the assignor”. Where, therefore, an assignment is effective, the debtor is
required to recognise the status of the assignee, heed a notice of assignment
38
and perform to the assignee. This merely confirms that under PECL an
assignee has a power to effect a substitution of the creditor unilaterally by
means of proper notice to the debtor.
Irrespective of notice, knowledge of an assignment also affects the
position. A debtor who has received a notice of assignment which is not in
writing, or has by other means become aware of an assignment,39 cannot
discharge the debt by performance to the assignor,40 but may elect either to
withhold performance or to perform to the assignee.41 Whether knowledge
results in a substitution of the creditor is unclear. On the wording of PECL,
there is nothing to indicate that a debtor who is aware of an assignment
independently of notice is obliged to perform to the assignee. Performance
to the assignee will presumably discharge the debtor, unless perhaps the
debtor could not have been unaware that despite the assignment the assignee
42
was not entitled to performance.
Of importance also is a provision designed with a view to the protection of
the debtor. In the case of competing demands for performance made of the
37 PECL, vol 2, 108 (Comment A).
38 PECL, vol 2, 108 (Comment B) on the exceptions to Article 11:301 PECL.
39 PECL, vol 2, 112.
40 Article 11:303(4) PECL. Despite indications to the contrary (Libertas-Kommerz GmbH v
Johnson 1977 SC 191; F R Salinger, Factoring Law and Practice (with a contribution on “Special
Considerations for Scotland” by R B Wood) 2nd edn (1995) (henceforth Salinger and Wood,
Factoring), 151, the predominant view in Scotland still is that knowledge obtained otherwise than
by formal intimation is irrelevant (Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed
Legal Systems at 801; McBryde, Contract, para 12-114; Salinger & Wood, Factoring, 151).
42 By analogy to Article 11:304 PECL. The right to withhold performance under Article 11:303(3)
PECL also cannot be an absolute one, but is presumably by analogy to Article 11:303(2) PECL
subject to reliable evidence of the assignment being provided.
assignment 315
debtor, a debtor may by virtue of Article 11:305 PECL “discharge liability” by

“conforming to the law of the due place of performance” or, “if the
performances are due in different places, the law applicable to the claim”.
The purpose is clearly to avoid the possibility that “[a] debtor who gives
performance to a claimant who has not the best right to receive it may have to
perform again in favour of the person who has the best right”.43 So as not to
involve the debtor in third party disputes and the attendant uncertainties, the
provision seeks to insulate the debtor against the risk of having to pay twice.
Of interest here is that PECL makes no attempt to resolve conflicts of this
nature with reference to their own rule regarding obligationary substitution,
and that the issue is also severed from the question as to which claimant is to
be preferred according to the priority rules. Although the Comments refer in
the abstract to the possibility that the national laws that are mentioned may
provide procedural devices rendering it unnecessary for the debtor to make a
decision as to which claimant has the best right to the proceeds of what is
44
due, the existence of such devices cannot be accepted as a given for all legal
systems. The wording of Article 11:305 PECL is in any event broad enough
to permit the release of the debtor who performs according to the provisions
of the applicable national law contrary to the provisions of PECL regarding
obligationary substitution and priority.
In taking this line, PECL avoids the difficulties experienced with the basic
South African rule requiring the debtor to perform to the claimant with the
45
best right from operating unfairly. By acting in conformity with Article
11:305 PECL, the debtor will be released, leaving competing claimants to
fight matters out in terms of the priority rules of the applicable law. The
obligationary question of the debtor’s release is by virtue of Article 11:305
PECL severed from the proprietary question as to who is entitled to the value
locked up in the performance. The approach is consistent with the implica-
tion implicit in the formal structure of PECL, namely that the provisions of
Section 3 concerning the effects of the assignment as between the assignee
and the debtor are restricted to them.
43 PECL, vol 2, 115.

44 The applicable national law may provide for the consignation of the performance by the debtor or
an application for a resolution of the dispute on the basis that the debtor will abide by the decision
(PECL, vol 2, 115).
45 See e.g. Van der Merwe et al, Contract, 478 in respect of South African law.
(3) Proprietary aspects: Priorities as between assignee and

competing claimants
Priority concerns the question whether the assignee is entitled to assert a
preferent claim to the proceeds of the right as against third parties who also
claim to be entitled thereto. The question typically arises in conflicts between
the assignee and a creditor of the assignor who seeks to attach the claim, an
insolvency administrator appointed to administer the estate of an insolvent
assignor, or a further assignee of the claim.46 Legal systems differ in their
treatment of the proprietary aspects of assignment. In Scots law, following
the approach of French law, the rule is that priority depends on priority of
47
intimation. South African law on the other hand accords priority with
48
reference to the time of the assignment.
Article 11:401 PECL combines the principle of priority of assignment
with a first-to-notify rule.
In respect of a conflict between the assignee and an attaching creditor of
the assignor, the assignee takes priority over a third party who attaches the
claim after the assignment takes effect, i.e. at the time of the assignment or
49
such later time as determined by the parties. Although this approximates
the German rule, it must be remembered that contrary to the position under
that law,50 the assignee does not under PECL become a creditor until the
formality of notice has been complied with. Under PECL, the absence of
notice and any obligationary substitution is irrelevant for the priority conflict:
an assignee may enjoy priority even though he is not a creditor of the debtor.
This aspect of the priority issue has been severed from the obligationary
effects of the assignment.
A similar approach is evident in the case of the bankruptcy of the assignor.
Subject to peremptory rules of insolvency law pertaining to the publicity of
assignments or security interests, the ranking of claims, and void and
voidable transactions, the interest of an assignee, irrespective of whether it
was established by an outright assignment or one made by way of security, is
preferred over that of the insolvency administrator appointed after the
51
assignment. Subject to the aforementioned provisos, the time of the
46 See e.g. the definition of “competing claimant” in Article 5(m) of the UN Convention on the
Assignment of Receivables in International Trade.
47 Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems at 797–798.
48 Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems at 797.
49 Article 11:401(3), read with Article 11:202 PECL in relation to future rights.
50 Kötz & Flessner, European Contract Law, 279.
51 Article 11:401(4) PECL. Cf PECL, vol 2, 123.
assignment 317
assignment is again decisive. Noteworthy is that the assignment is accorded a

proprietary effect irrespective of whether notice has been given. The assignee
may therefore enjoy priority even though no obligationary substitution has
taken place.
The issue of priority in these two instances is severed from its traditional
basis, namely the notion that as a result of the obligationary substitution of
the assignee for the assignor the assignor is no longer the creditor so that
there is nothing in his or her hands that can be attached or fall into the
insolvent estate.
The priority of assignment approach holds even for a conflict between
successive assignees of the same claim or claims but is in this instance
qualified by a first-to-notify rule.
Where neither party has given notice (or could not have done so because
there is as yet no debtor), “priority is determined by the order in which the
assignments are made”, so that the first assignee is in principle preferred over
52
subsequent assignees. The priority of the first assignee is provisional only
and liable to be displaced if the second assignee is first to give notice.53
Provided that such an assignee neither knew nor ought to have known of any
earlier assignment, he or she will enjoy priority over any prior assignee.54
Interestingly, the explanation for the first-to-give-notice rule is not that the
right is immediately passed to the first assignee to give notice and that
nothing remains that is capable of transfer to a subsequent transferee.
Instead, the effect of notice is justified with reference to considerations
appropriate to the law of property rather than the law of obligations. On the
one hand, the giving of notice is portrayed as “the closest equivalent to taking
possession, which is recognised as a way of obtaining priority in respect of
movables”. Notice to the debtor may also fulfil a publicity function in the
sense that “an intending assignee, before giving value, can ask the debtor
55
whether the debtor has received any prior notice of assignment”. A second
assignee is accordingly entitled to assume that there is no earlier assignment
if a first assignee has failed to give notice, unless he or she did not know and
could not have been unaware of an earlier assignment.
The treatment of priority in the case of a double assignment is dealt with as
an issue formally and conceptually distinct from the notion of transfer as
between the assignor and assignee embedded in Article 11:201(1)(a) PECL,

53 PECL, vol 2, 122.
55 PECL, vol 2, 122.
and this applies also to the determination of the other aspects of the priority
problem. Priority, according to PECL, is accordingly severed from what the
comments style the “validity” of the assignment.56 There is therefore a depar-
ture from the nemo dat rule as a rationale for according priority, and an
express disjunction of the provision regarding the obligationary effect of an
assignment inter partes between assignor and assignee and the issue of
57
priority.
(4) Immediate effects of assignment as between assignor and

assignee
In view of Sections 3.2 and 3.3 the assertion that by virtue of Article
11:201(1)(a) PECL the assignee “becomes the new holder of the claim” and
58
that “the claim becomes vested in the assignee” cannot be taken literally.
The effect of Article 11:201(1)(a) PECL is restricted to the relation between
59
assignor and assignee. Article 11:303 PECL postpones the obligationary
substitution until notice is given. Lest it be thought that the priority afforded
a first assignee in the absence of notice is based on the notion that a transfer
to such an assignee deprives the assignor of the ability to give a further
assignment, the commentary points out that Article 11:201 PECL does not
deal with priority issues either.60 If the effect of an assignment is severed from
the obligationary substitution of the assignor and is independent of the
question of priority, the question arises as to the sense in which the notion of
transfer is used in this connection.
Relevant in this regard is Article 11:203 PECL where, under the heading
“Preservation of Assignee’s Rights against Assignor”, it is stated:
An assignment is effective as between the assignor and assignee, and entitles the
assignee to whatever the assignor receives from the debtor, even if it is ineffective
against the debtor under Articles 11:301 or 11:302 PECL.
The proviso refers to cases where an assignment, even prior to and indepen-
dently of notice, is said to be ineffective as against the debtor because of a
contractual prohibition on assignment (Article 11:301 PECL) or the highly
personal nature of the right (Article 11:302 PECL). Even in such cases, and
therefore also in all others, an assignment according to the Comments to
56 PECL, vol 2,, 122 (Comment A to Article 11:401 PECL).

57 PECL, vol 2, Comment A on 121–122.
58 PECL, vol 2, 98.
59 The heading to Section 2 of Chapter 11; PECL, vol 2, 98.
60 PECL, vol 2, 98, 100.
assignment 319
Articles 11:301 and 11:302 PECL, “operates to transfer to the assignee the
right to all benefits received by the assignor from the debtor”.61
A transfer presupposes, however, that the subject matter should have been
vested in the transferor. To portray the effect of an assignment as a transfer to
the assignee of a right “to whatever the assignor receives from the debtor” is
artificial in the extreme. This is not a right that the assignor ever had against
the debtor, of course. It comes as no surprise that the text of Article 11:203
PECL does not speak of a transfer at all, but merely states that the assign-
ment “entitles” the assignee to whatever the assignor receives from the
62
debtor. This casts doubt on the portrayal of the effect of the assignment as a
transfer. If as between the assignor and the assignee the only effect of an
assignment is that the assignee has a personal right as against the assignor to
have the proceeds of performance by the debtor paid over, the notion of a
transfer becomes redundant. One might equally well take the view that an
assignment by operation of law creates a claim against the assignor for the
assignee. This is very different from what is envisaged by Article 11:201
PECL, namely a transfer to the assignee of “all the assignor’s rights to
performance in respect of the claim assigned”.
The severance of the effect of an assignment between the parties thereto
and the priority question, coupled with the postponement of obligationary
substitution until notice is given entails that an assignor retains the com-
petence to make multiple assignment in respect of the same claims or other-
63
wise to dispose of the claim in spite of having done so previously. To do so
64
might amount to a breach of contract against an earlier assignee. It will not,
however, preclude a later assignee from acquiring priority by being the first
to notify the debtor.
(5) PECL provisions in perspective

PECL does not stand alone in making a break with traditional views of assign-
ment and its effects. The differentiation of the effects of an assignment inter
partes from that between the assignee and third parties is also apparent from
65
the UN Convention on Assignment of Receivables in International Trade
61 PECL, vol 2, Comment D on 109 (emphasis GL).

62 See also PECL, vol 2 at 111 on Article 11:203 PECL.
63 This is also implicit in provisions of Articles 11:204(b) and 11:308 PECL, which presuppose that
the assignor and debtor are in principle still entitled to agree to a modification of the contract, and
hence to deal with the subject matter of the assignment.
64 Article 11:204(a)(i) PECL.
65 Adopted in 2001 after a gestation period of almost six years: see Bazinas (2003) 11 Tulane Journal
of International and Comparative Law 275 at 277.
and Chapter 9 of the UNIDROIT PICC 2004.66 While both instruments

characterise assignment as a transfer by agreement of a contractual right,67 it
is made clear that an assignee does not derive priority over competing
claimants from the mere assignment. Neither the PICC nor the Convention
provides a substantive rule regarding the issue of priority. In the case of the
PICC, the explanation for “this self-restraint” is that the priority question
involves property rights which “can hardly be dealt with satisfactorily in a soft
law instrument … and are better entirely left to the otherwise applicable
68
law”. In the case of the Convention, the inability of UNCITRAL to achieve
69
consensus on a uniform substantive priority regime resulted in the inclusion
of conflict of law rules to identify the national legal system applicable to priority
70
issues. Under both these instruments, the position of an assignee as against
competing claimants therefore depends on norms beyond their ambit which
are not necessarily congruent with its provisions as to the relationship between
the assignee and the debtor and that between the assignor and the assignee.
A further parallel is that both the PICC and the Convention regard notice
to the debtor as decisive for the substitution of the assignee as creditor. Until
the debtor is notified of the assignment, discharge is effected by payment in
accordance with the original contract.71 After notification the debtor is dis-
charged only by paying the assignee72 or, under the UN Convention if other-
wise instructed by the assignee, in accordance with such a payment
instruction.73 Under the UN Convention, the assignee has the right as against
the assignor to retain payment received from the debtor even before notifi-
cation, and where payment is made to the assignor the assignee is entitled to
74
payment of the proceeds. The assignee’s right to the proceeds is treated as
66 Cf M J Bonell, “UNIDROIT Principles 2004 – The New Edition of the Principles of International
Commercial Contracts adopted by the International Institute for the Unification of Private Law”
(2004) 9 Uniform Law Review 5.
67 Article 2(a) UN Convention; Article 9.1.1 PICC.
68 Bonell (2004) 9 Uniform Law Review 5 with reference to Comment 4 to Article 9.1.1 PICC.
69 Bazinas (2001) 9 Tulane Journal of International and Comparative Law 259 at 285–287.
70 Articles 22–25, 30. On the optional substantive priority regimes held out as models for possible
adoption by member states, see Article 42 and Articles 6–9 of the Annex to the Convention. Cf
Bazinas (2001) 9 Tulane Journal of International and Comparative Law 259 at 285; Eidenmüller
(2004) 204 Archiv für die civilistische Praxis 457 at 474.
71 Article 17(1) UN Convention; cf Article 9.1.10 PICC.
72 UN Convention Article 17(2), cf the provisos in sub-paragraphs 3–8; Article 9.1.10 PICC. By
virtue of Article 9.1.11 PICC in respect of successive assignments of the same right, payment
according to the order in which the notices were received from the various assignees discharges
the debtor. Importantly, this rule has no bearing on the resolution of priority conflicts. See Bonell
(2004) 9 Uniform Law Review 5.
73 Article 17(2).
74 Article 14(1)(a), (b).
assignment 321
a contractual right against the assignor rather than a consequence of a

transfer.75 Principally therefore, the effect of the assignment under the UN
Convention is to empower the assignee to send the debtor notification of the
assignment and a payment instruction. The assignor may also notify, but after
notification only the assignee may send a payment instruction,76 so that
notification establishes the assignee as the party entitled to the performance
as against the debtor. Prior to the notification of the assignment the assignor
and the debtor may by agreement modify the original contract. The provision
that such an agreement “is effective as against the assignee” and that “the
77
assignee acquires corresponding rights”, presumably upon notification,
confirms that, to the extent that an agreement of assignment is immediately
78
effective, its operation is restricted to the assignor and the assignee.
The underlying assumption of both the PICC and the UN Convention,
accordingly, is that the obligationary and proprietary aspects are separate
issues capable of being divorced from one another and susceptible to
regulation by means of different systems of rules not necessarily based on
similar premises. This is also the approach of PECL.
D. PRACTICAL UTILITY OF THE ASSIGNMENT REGIME OF

PECL
The claim that PECL’s assignment regime is sufficiently detailed to serve as
79
the basis of a uniform law of assignment in the European context raises a
number of issues. While it can be assumed that PECL deals adequately with
80
the mobility of claims and the protection of the debtor, regard must be had
to their priority regime as well as the extent to which they can accommodate
modern assignment practices relating to the trade receivables of businesses.
81
These practices assume various manifestations, but generally involve the
global or bulk assignment of both existing and future claims generated by
businesses by means of a single deed of assignment, often to provide a con-
tinuous, covering security to a financial institution in respect of a fluctuating
75 Bazinas (2003) 11 Tulane Journal of International and Comparative Law 275 at 289; cf Article
11:203 PECL.
76 Article 13(1).
77 Article 20(1). Subject to certain exceptions, an agreement concluded after notification of the
assignment between the assignor and the debtor that affects the assignee’s rights, on the other
hand, is ineffective as against the assignee (Article 20(2)).
78 Article 11(1).
79 See note 21 above and the accompanying text.
80 See Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 at 483–491.
indebtedness of a client. Thus, under an invoice discounting or confidential

factoring arrangement, a business, with a view to financing its business
operations, assigns its present and future claims against trade debtors to a
financial institution acting as factor in return for periodic financial advances.
The so-called factor does not provide any of the credit control, debt collec-
tion and other administrative services typical of many factoring arrange-
ments. The agreement envisages instead that the assignor conducts normal
relations with its customer base, maintains the sales ledger, and collects from
debtors, without informing them of the assignment and requiring them to
82
pay directly to the factor. It is of the essence that the transaction is con-
cluded, quietly, without publicity in order not to disrupt the relations
between the assignor and its customers and to maintain the creditworthiness
of the assignor as against those who supply goods to it. The agreement
accordingly envisages that the assignee will come to the fore and rely on the
assignment as against the debtors only when the assignor fails to comply with
83
the underlying contract. Although the assignee’s security will continually be
diminished by payments to the assignor, it will be replenished because the
prior assignment extends to all further claims generated by the assignor’s
business activities.
Assignment regimes based on the formality of notice to the debtor
experience difficulties in accommodating practices of this kind.84 Scots law
provides an illustration. Although it has been asserted that Scots law is
flexible enough to permit the assignment of future rights and that this can be
85 86
done on a global basis, the position is not altogether clear. The require-
ment of intimation, for instance, presupposes that the debtor be in existence
87
when notice is given, so that the formality will have to be complied with in
88
respect of each debtor as and when a particular debt is created. This is not
only cumbersome and costly, but precludes the possibility of a confidential or
89
quiet assignation. A further and even more fundamental difficulty is that
82 Salinger & Wood, Factoring, 18–19.

83 McCormack, Secured Credit, 225; cf 211–212 on the need to preserve the assignor’s
“management autonomy” in respect of its trade claims.
84 Kötz & Flessner, European Contract Law, 278; cf the amendment of para 3:94 of the Dutch BW
(see (2004) Staatsblad 314 on the Law of 30 June 2004) to permit a cession without the usual
requirement of notice to the debtor specifically to accommodate bulk assignments.
85 Salinger & Wood, Factoring, 150, 151.
86 Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems at 803–804 n 97.
87 Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems, 803–804 n 98.
88 Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems at 804, but see
McBryde, Contract, paras 12–101, 12–108.
assignment 323
under Scots law an assignee does not derive any protection from an uninti-
mated assignation.90 Because “no title vests in assignment until the intimation
has been given to the debtor”,91 the formality of intimation places the assignee
under a confidential factoring arrangement at risk in respect of priority
conflicts.
These difficulties are met by recourse to the institution of the trust.
Although in the absence of intimation, an assignee enjoys no obligationary
standing as against the debtor and no proprietary interest in the subject
matter, it is said to be permissible for the assignor to undertake to hold the
subject matter of the assignment on trust for the assignee. On the basis that
the assignee is thereby constituted the beneficial owner of the claims, it has
been held that the assignee is protected in the event of the insolvency of the
92
assignor provided the constitution of the trust was notified to the assignee.
93
Although the correctness of this approach has been doubted, it is said to be
the normal practice in Scotland to obviate the need for intimation in respect
94
of invoice discounting in this way.
Under PECL, such expedients are unnecessary. The difficulties which the
formality of intimation or notice poses for the recognition of the efficacy of a
global assignment are overcome by the separation of the obligationary con-
sequences of an assignment from the proprietary dimension. Priority dates
from the time of the assignment when the assignee gives value to the assignor
and becomes interested in the claim and not on the obligationary status of the
assignee as against the debtor. The failure to notify cannot therefore detract
from the position of the assignee. The same holds true of the case of a conflict
between successive assignees where, as is often the case, notice cannot be
given because the debtors have as yet not materialised. To the extent that
notification could have been given, it is merely an option to be considered by
the assignee in order to obtain preference over a competing assignee. This
approximates the role of notice in South African law, where notice does not
play a constitutive role. Because the assignee enjoys priority irrespective of
notification, confidentiality can be maintained. The idea underlying practices
such as invoice discounting, namely that the arrangement should not
interfere with the business operations of the assignor and disturb its relations
91 Salinger & Wood, Factoring, 151.
92 Tay Valley Joinery Ltd v CF Financial Services Ltd 1987 SLT 207; Nienaber & Gretton, in
Zimmermann, Visser & Reid, Mixed Legal Systems at 804; Salinger & Wood, Factoring, 152–153.
93 Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems at 804; Salinger &
Wood, Factoring, 154.
94 Salinger & Wood, Factoring, 153.
with its clients, is arguably also better served by a system in which the
assignor remains the creditor until notification. This obviates the need to
resort to expedients, common in South Africa, such as an authorisation to the
assignor to collect on behalf of the assignee as some sort of undisclosed
principal.95 Because the assignor remains creditor until notification, keeping
the assignment quiet will also not present a false front, as is so often the case
96
in systems such as South African law.
The severance of the priority issue from the assignee’s standing as creditor
as a result of the move away from the nemo dat rule has a further important
implication. It permits and facilitates multiple assignments by a creditor of
the same claims, thus optimising the use businesses can make of their trade
claims. In this way, problems experienced in South African law in respect of
97
successive security cessions pertaining to the same rights are overcome.
Provided that the order of priority is clearly determined, such an approach is
value maximising and on the face of it economically efficient.
Overall, the approach of PECL is functional and in harmony with that of
the UN Convention and other international instruments.98 By providing a
basis for the regulation of practices such as invoice discounting, the PECL
regime is responsive to the practical needs of a sophisticated financial
environment such as the European Union.
The priority issue is one of the most complex and intractable facing
attempts to establish a uniform law of international assignment. PECL, as
99
indicated earlier, opts for a regime combining a first-to-give-notice rule and
a rule based on the priority of the assignment. Whether such a mixed system
addresses all aspects of the priority issue adequately cannot be fully dealt
with here. The approach, which is reminiscent of that established for English
100
law in Dearle v Hall, avoids the problems associated with according priority
101
on the basis of the registration of the assignment in a public registry, but
95 For example, Densam (Pty) Ltd v Cywilnat 1991 (1) SA 100 (A).
96 Cf Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems at 818.
98 See section C(5) above.
100 (1828) 3 Russ 1; cf Bazinas (2001) 9 Tulane Journal of International and Comparative Law 259
at 285.
101 See Bazinas (2001) 9 Tulane Journal of International and Comparative Law 259 at 285; Davies
(2004) 24 Legal Studies 295 at 308–311; but see Eidenmüller (2004) 204 Archiv für die
civilistische Praxis 457 at 477–479, 500–501. See generally on the filing system of Article 9 of
the US Uniform Commercial Code: H Kötz, “Rights of Third Parties – Third Party Benefici-
aries and Assignment”, 7 International Encyclopedia of Comparative Law, vol. VII/13 (1992),
para 103 (henceforth Kötz, “Rights of Third Parties”).
assignment 325
brings with it not only the advantages of each of its component elements, but
also their disadvantages. The simplicity of the priority of assignment rule and
the confidentiality which it permits102 must be balanced against the possibi-
lity that the lack of publicity and the risk of harm to would-be assignees might
raise the price at which the latter is prepared to extend credit to a level which
would discourage transactions.103 The supposed advantage of a priority
regime based on the notification of the debtor is that an intending assignee is
able to elicit information about prior assignments by enquiry from the
104
debtor. Apart from the fact that this provides no protection for third parties
105
who supply to assignors on short-term credit, an enquiry of this kind prior
to taking an assignment is not equivalent to a notice of the assignment. The
question in any event is whether a debtor would necessarily be aware of any
prior assignment, and if so, whether he can be regarded as duty bound to
106
inform a would-be assignee thereof. Whatever the position might be in
relation to existing claims of high value, the supposed publicity value of
notice is illusory in respect of the global assignment of future rights and those
comprising both existing and future rights. In such cases the debtors are
either non-existent or unknown. Where the debtors are known, there might
be so many of them that notification is impractical and costly, particularly
where, as will often be the case, the assignment is of claims that taken singly
are of relatively low value.107 In the final analysis the very nature of the assign-
ment might require that an assignee refrain from approaching the debtors of
108
his assignor. Although transaction costs are saved by the fact that in relation
to the issue of priority notice is facultative and not a constitutive require-
109
ment, the mixed system of PECL does not bring the certainty as to the
102 Bazinas (2001) 9 Tulane Journal of International and Comparative Law 259 at 284.
103 Bazinas (2001) 9 Tulane Journal of International and Comparative Law 259 at 284, and see
Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 at 474–475 on the role of
publicity in reducing transaction costs. Contra Davies (2004) 24 Legal Studies 295 at 309–310.
104 Bazinas (2001) 9 Tulane Journal of International and Comparative Law 259 at 285; cf PECL,
vol 2, 122 (“an intending assignee, before giving value, can ask the debtor whether the debtor
has received any notice of a prior assignment”).
105 Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 at 476.
106 Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 at 476; Bazinas (2001) 9 Tulane
Journal of International and Comparative Law 259 at 284–285; McCormack, Secured Credit,
245 (“the debtor is not a publicly commissioned official charged with the task of receiving or
tracking notices”); cf F Oditah “Priorities: equitable versus legal assignments of book debts”
(1989) 9 Oxford JLS 513 at 525–527.
107 Interestingly, Illustration 1 in PECL, vol 2, 122 makes no mention of an assignment of future
rights or of bulk or global assignments.
108 Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 at 476.
109 Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 at 475–476.
entitlement to claims required by the principle of publicity.110 The suggested

regime would permit an assignee under a global assignment of all the present
and future book debts of a business to establish priority without regard to the
considerations which led German law to qualify its priority rule in favour of
third party suppliers of goods to businesses,111 or the publicity requirements
of English law in respect of company charges.112
E. THEORETICAL NATURE OF ASSIGNMENT UNDER PECL
The notion of assignment as a transfer of a claim from a creditor to a third

party is a venerable and powerful idea. Since its inception in medieval
mercantile practice, the transfer construction has superseded the Romanistic
procuratio in rem suam as a method for substituting the creditor under an
113
obligation. The transfer construction remains the foundation of the under-
standing of assignment not only in European legal systems but also in mixed
114
systems such as those of South Africa and Scotland. In South African and
Scots law, the transfer of the subject matter of the assignment is decisive for
both the obligationary and proprietary consequences of the transaction.115
PECL also adheres to the transfer construction. Although the substitution
of the assignor is made to depend on the formality of notification, it is clear
that an assignee enjoys priority irrespective of whether he or she is a creditor
of the debtor.116 This renders the role of the transfer idea unclear. As has been
pointed out, furthermore, there is on the face of it no discernible right or claim
that can unambiguously be identified as the subject matter for the immediate
117
transfer that supposedly operates as between the parties to the assignment.
In the absence of clarity in this regard the very understanding of an assign-
ment as a transfer of a right and the need to retain it is thrown into doubt.
PECL also recognises the possibility of dealing with personal rights other
than by way of assignment. Article 11:101 PECL extends, “with appropriate
110 Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 at 476; cf McCormack, Secured
Credit, 244–245.
111 Eidenmüller (2004) 204 Archiv für die civilistische Praxis 457 at 480; Kötz, “Rights of third
parties”, para 105.
112 See McCormack, Secured Credit, 221–222, 224–225; M G Bridge, R A McDonald, R L
Simmonds & C Walsh, “Formalism, functionalism and understanding the law of secured
transactions” (1999) 44 McGill LJ 567 at 646–648.
113 Zimmermann, Obligations, 63–75; Ranieri, Obligationenrecht, 434.
114 See note 1 above and the accompanying text.
115 See section B above.
assignment 327
adaptations”, the provisions of Chapter 11 “to the granting by agreement of a

right in security over a claim otherwise than by assignment”. Such a consti-
tutive security agreement, which creates a real right of security in claims that
remain in the patrimony of the creditor,118 is not fully explored in PECL. It
provides an alternative to the transfer notion in respect of what is probably
the most important application of assignment in commercial practice.
In splitting off the obligationary from the proprietary aspects of assign-
ment, PECL and other international instruments treat these aspects as
functionally distinct problems. Rather than attempting to deal with them by
means of rules seemingly derived from a general theoretical model of assign-
ment, a choice has been made for a differentiated treatment of these areas by
means of autonomous rules informed by policy considerations relevant to each.
There is of course no doctrinal necessity which renders the transfer con-
struct axiomatic. The ambiguity of the text in relation to the subject matter of
the supposed transfer between the assignor and the assignee under Article
11:203 PECL, when seen in conjunction with other provisions, provides a
foundation for alternative models of an assignment, so that the possibility that
PECL has made a decisive conceptual break with the past and the dogma of
assignment as entailing the transfer of personal rights requires consideration.
The PECL provisions on assignment for instance provide some basis for
the notion that an assignment vests in the assignee a power to effect a
substitution of the creditor in relation to the obligation which is the subject
matter of the transaction. In particular, provisions relating to the immediate
119
effect of an assignment as against a debtor are compatible with the view
that the assignee (or for that matter the assignor) enjoys a legally recognised
power (Gestaltungsrecht) to make him or herself into the creditor. On this
basis, the imagery of transfer is rendered superfluous. The effect of an assign-
ment can be understood merely as involving the substitution of a party rather
than a transfer of a notional thing. If there is no logical necessity to tie priority
to the idea of a transfer to the assignee of a notional beneficial ownership of
a claim, it can certainly by legislative fiat be tied to a point in time at which
the power of substitution was acquired by the assignee. Such a construction is
conceivably better suited to explain the ability to deal by way of assignment
with future rights, where the notion of a transfer is strained beyond the
breaking point, and would also be consistent with the notion of a substitution of
parties proposed in Chapter 12 of PECL. On this approach, the obligationary
118 By way of a charge or pledge: cf McCormack, Secured Credit, 210.

119 See above section C(2).
substitution that occurs on notice to the debtor facilitates the collection of

what is due from the debtor and thus the realisation of the subject matter
where the assignment is made for security.
The transfer construction is of course embedded in the text of PECL. It is
apparent that the notion of a transfer can only be maintained if it is
understood in a rather special way.
At first blush, the PECL regime appears reminiscent of a model of cession
advanced for South African law by Susan Scott. Common to both PECL and
Scott’s vision of a cession is a separation of the proprietary and obligationary
effects of a cession. Whereas according to Scott a “shifting of assets” occurs
immediately upon the cession, the obligationary substitution of the cedent by
120
the cessionary is regarded as complete only upon notice to the debtor. This
approach has been severely criticised in the South African literature and has
121
not found acceptance in the case law. It differs in any event from the
approach of PECL and cannot serve to provide a theoretical explanation for
it. According to PECL the supposed transfer agreement is effective only as
between the assignor and the assignee and not per se as against third parties.122
Scott, on the other hand, adheres to the nemo dat rule and regards the
cessionary act as having an immediate proprietary effect not only as against
the cessionary, but also as regards third parties.123
A closer approximation of the PECL position is provided by the view of
some Scottish commentators that intimation serves to complete or perfect, as
against third parties, a transfer that has already taken place as between the
124
assignor and the assignee. This view, which is not generally accepted for
125
Scots law, could conceivably provide an explanation for the effect of know-
126
ledge on the part of the debtor of an unnotified assignment. The notion of
an inchoate transfer is not fully consistent with the wording of Article 11:203
PECL, however. Here the emphasis is merely on the relationship of the
assignee as against the assignor. The Article gives no indication that the assign-
ment as such leaves the assignee with an inchoate or suspended claim against
the debtor.
120 Scott, Cession, 96–105; see also Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed
Legal Systems at 795 n 43.
122 See above section C(4).
123 Scott, Cession, 101–102, 103.
124 Nienaber & Gretton, in Zimmermann, Visser & Reid, Mixed Legal Systems at 790–791;
Salinger & Wood, Factoring, 150.
126 See Article 11:303(4) PECL.
assignment 329
Yet another analysis could proceed from the view that has been advanced
for South African law, that a creditor, as the holder of a personal right, enjoys
not only a beneficial interest in the performance due from the debtor, but
also a legally recognised capacity to enforce and otherwise to dispose of the
right.127 According to some, these components of a creditor’s interest may be
separated from one another by way of a cession, for example by a cession of
the capacity to dispose of the right — or at least the capacity to enforce it —
to a cessionary where a security cession is intended to effect a pledge of the
right. Conversely, the cedent may cede the beneficial interest to the cession-
ary while retaining the capacity to dispose of and control the economic value
128
inherent in the debtor’s performance. The notion of a transfer which
involves a splitting of the claim so as to leave the assignor with the capacity to
deal with the debtor as creditor (at least so long as no notice of the assignment
is given) but to vest the assignee with the beneficial interest in the perform-
ance could conceivably provide a theoretical template for the relative effect
accorded to an unnotified assignment under PECL. The claim of an assignee
to whatever the assignor has received from the debtor under Article 11:203
PECL can be construed as resulting from a transfer to the assignee of the
beneficial ownership in the claims. Interestingly, an analysis along these lines
approximates the results reached in Scots law by the utilisation of the trust in
order to invest the assignee with a proprietary interest in the subject matter
of the assignment even though intimation has not yet been made.129 If the
notion of beneficial ownership in a claim is given legal recognition, an assignee
will be protected on that basis irrespective of his standing as creditor. Article
11:203 PECL echoes the trust construction as far as the assignee, as
beneficial owner of the claims of which the assignor is still formally the
owner, is entitled to whatever has been received by the latter from the debtor.
F. CONCLUSION
Whether there is a need to retain the transfer model – perhaps in an adapted

form – or to develop some other theoretical construct as an overall theoretical
framework of understanding is unclear. It is true, as asserted by Hesselink,130
that conceptual jurisprudence has no place in the European context. The
127 Van der Merwe et al, Contract, 468, but see P M Nienaber, “Cession” in LAWSA, 2nd edn
(2003), vol 2(2), para 53.
128 Van der Merwe et al, Contract, 468–469.
129 See notes 92–94 above and the accompanying text.
130 Hesselink & De Vries, European Contract Law, 89–90.
treatment of assignment under PECL and related international instruments

calls to mind the functionalist approach adopted in respect of Article 9 of the
UCC whereby transactions of divergent kinds are dealt with on the same
juridical basis on account of a common underlying economic purpose.131
From this perspective certainly, the obscurity regarding the basic under-
standing of an assignment under PECL does not necessarily amount to a
major defect.
It should be borne in mind, however, that the experience with the
132
functionalist approach of the UCC has not been a uniformly positive one.
The caveat against conceptual jurisprudence is in any event properly directed
at legal formalism, i.e. the conviction that results can be achieved merely by
inferences drawn from the seemingly self-evident content of concepts, such
133
as the notion that assignment involves the transfer of a right. Whether the
rejection of formalism of this kind necessarily does away with the need for
rigorous conceptual analysis of legal institutions designed to facilitate an
understanding of the interests at stake in any particular field, and the
balancing thereof, is a moot point. It is submitted that the regulation of an
area as complex as that of assignment does require clarity as to the conceptual
tools by means of which it is to be understood.
While some aspects of the PECL Chapter on assignment are in need of
further elaboration and debate, this is, of course, a primary function of a
restatement of law. Overall, Chapter 11 is of a high quality and provides a
sound basis for future development.
131 Bridge et al (1999) 44 McGill LJ 567 at 572–573; Davies (2004) 24 Legal Studies 295 at 300–
304.
132 Bridge et al (1999) 44 McGill LJ 567 at 573, 614–615, 662; Davies (2004) 24 Legal Studies 295
at 304–305.
133 H L A Hart, The Concept of Law (1961), 126.
13 Capitalisation of Interest
Max Loubser
A. INTRODUCTION
B. NATURE AND FUNCTION OF INTEREST
C. HISTORY OF RULES ON CAPITALISATION
(1) Roman law
(2) Policy on interest and capitalisation
D. MODERN THEORY ON REGULATION OF INTEREST
E. REGULATION OF CAPITALISATION BY CONTRACT AND
TRADE USAGE
(1) Enforceability of agreements on capitalisation
(2) Unconscionability standards
(3) Capitalisation under the Usury Act in South Africa
(4) Small loans in South Africa
F. CAPITALISATION AND THE IN DUPLUM RULE IN SOUTH
AFRICA
(1) General nature, effect and rationale of the in duplum rule
(2) Capitalisation
G. MORA INTEREST
(1) Entitlement to mora interest
(2) Mora interest and capitalisation
(3) Additional finance charges under South African Usury Act 73 of 1968
(4) Mora interest on damages
H. CAPITALISATION AND INTEREST AS DAMAGES
I. CONCLUSIONS
(1) Lack of uniformity
(2) Economic and commercial realities
(3) Capitalisation in respect of both debts and damages
(4) Should consumer debts be excluded?
(5) Contractual provisions
(6) Interest as damages
(7) Calculation – undue complexity?
(8) Intervals for capitalisation
(9) Reform in Scotland and South Africa
331
A. INTRODUCTION
Distaste for interest has been pervasive in ethics, religion and law in all of
recorded history. The rules against usury are rooted in the idea that interest is
by its nature exploitative. If by this reasoning interest is bad, then the taking
of interest on interest – that is compound interest or anatocism (the archaic
and almost obsolete term for compound interest) – is worse.1 The word
anatocism has a ring about it of something unpleasant.
From an economic and mathematical point of view it does not matter
whether compound interest is seen as the adding of accrued interest to a debt
as interest or as capital, the effect is the same. In legal terminology, almost as
if by verbal sleight of hand, the lawful taking of compound interest becomes
capitalisation – the process whereby accrued interest is merged with the
principal or capital, so as then to generate further interest on the increased
capital amount.
The legal rules on capitalisation indicate circumstances where the taking
of interest on interest is tolerated in terms of a statute, agreement or trade
usage. Research projects in various countries over the last twenty years or so
have indicated that such tolerance has been generally limited and that the law
on capitalisation or compound interest has lagged behind economic and
2
commercial realities. In this chapter the focus is on Article 17:101 PECL,
which provides for the annual capitalisation of interest for certain types of
debt.3 This provision will be compared with the position in Scotland and
South Africa, to assess to what extent it provides a suitable model for reform
of the law.
1 See A S Hartkamp, Asser’s Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht
Verbintenissenrecht Deel I, 11th edn (2000), 463: “Bestond er reeds outijds zekere afkeer tegen
het bedingen van rente, nog groter was de weerzin tegen het berekenen van rente over vervallen,
doch achterstallig gebleven rente.”
2 See generally on various European legal systems the notes to Article 17:101 PECL, vol 2, 241; and
see the Law Reform Commission of Manitoba’s Report on Pre-judgment Compensation on
Money Awards (1982); the Law Reform Commission of British Columbia’s Report on the Court
Order Interest Act LRC 90 (1987); the Law Reform Commission of Ontario’s Report on
Compensation for Pesonal Injuries and Death (1987); the Law Reform Commission of Hong
Kong’s Report entitled Interest on Debt and Damages (1990); the New Zealand Law
Commission’s Report on Aspects of Damages: The Award of Interest on Money Claims, No 28
(1994); the Law Commission of England’s Report on Pre-judgment Interest on Debts and
Damages, Law Com No 287 (2004); and the Scottish Law Commission’s Consultation Paper on
Interest on Debt and Damages, Scot Law Com DP No 127 (2005).
3 Article 17:101 PECL provides as follows:
(1) Interest payable according to Article 9:508(1) is added to the outstanding capital every 12
months.
(2) Paragraph (1) of this Article does not apply if the parties have provided for interest upon
delay in payment.
capitalisation of interest 333
Where the taking of interest on interest is tolerated as lawful capitalisa-

tion, the merger of interest into capital does not necessarily remove the taint
of interest. For example, South African law allows banks to capitalise interest,
but, as will be shown below, the original nature of the capitalised interest is
not forgotten and when an overall limitation on interest is enforced in terms
of the in duplum rule, capitalised interest is taken into account as interest and
4
not as capital.
The lingering aversion to compound interest or anatocism is reflected in
the practice of courts in Scotland normally to award only simple interest on
unpaid debt, whereas compound interest will be considered where the
debtor’s conduct has been particularly offensive, such as in cases of fraud or
misappropriation of funds held in a fiduciary capacity. On the practice in
Scotland Lord Justice-Clerk Patton put it as follows in Douglas v Douglas’s
5
Trustees:
A claim for compound interest, with annual rests, is a demand which can only be
maintained, either in the case of a fixed usage in commercial dealings, or where
there has been an abuse in a party trusted with funds, and violating his trust.
6
In the Scottish case Maclean v Campbell the Inner House of the Court of
Session distinguished between interest on arrears of interest (once-off
capitalisation of interest) on the one hand and compound interest (involving
“rests”, i.e. compounding at specified intervals) on the other. The court allowed
7
the former, but not the latter, describing it as being of a “penal nature”.
The long-standing distaste for interest generally and compound interest in
particular is rooted in the rules on usury. To discuss capitalisation in context it
is necessary first to clarify the terms “interest” and “usury” and second to
refer briefly to the history of usury and the policy considerations that have
impacted on this area of the law.
B. THE NATURE AND FUNCTION OF INTEREST

The meanings of the terms “interest” and “usury” have changed over time.
Historically these terms were often equated and usury indicated any payment
4 See section F(2) below.
5 (1867) 5 M 827 at 836. See also on the practice in England, Lord Browne-Wilkinson in West-
deutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 at 701 :
“In the absence of fraud, courts of equity have never awarded compound interest except against
a trustee or other person owing fiduciary duties who is accountable for profits made from his
position.”
6 (1856) 18 D 609.
7 See further Scot Law Com DP No 127 (2005), para 8.4.
for the use of money, whereas today the term usury is used to indicate an
exorbitant payment for the use of money. Historically the term interest
primarily indicated compensation for non-payment of money due, whereas
today it indicates payment for a number of reasons, including compensation
for unpaid debt; payment for the use of money in terms of a contract or trade
usage; and payment specifically provided for by statute.8
According to Keynes the rate of interest is the “price” which “equilibrates
the desire to hold wealth in the form of cash with the available quantity of
9
cash”. The rate of interest thus represents the price at which there is equili-
10
brium between the demand and supply of loans of money. The rate of interest
can also be said to represent “the percentage excess of a sum of money
contracted for forward delivery, e.g. a year hence, over what we may call the
11
‘spot’ or cash price of the sum thus contracted for forward delivery”. In
functional terms interest is the price a borrower has to pay for the use of money
and, conversely, the return obtained by a lender for parting with liquidity and
12
deferring consumption of money. Interest therefore indicates a time
preference for money and could be described as the price that borrowers are
willing to pay to have money now rather than having it later. The Scottish Law
Commission in its Discussion Paper on Interest on Debt and Damages13
notes that interest can be divided into different elements: an element
accounting for the time value of money, or inflation; an element for reward
for not having the use of money; and an element accounting for the risk of
non-payment.
Simple interest is calculated on the principal sum only, whereas com-
pound interest is calculated on the principal plus any interest due at a date
when by agreement or operation of law interest can be added to the principal
14
(capitalised).
The effective interest rate determines the future value of a payment that
includes interest or, conversely, the present (discounted) value of an
entitlement to receive a future payment that includes interest. For instance,
8 P S Atiyah, The Rise and Fall of Freedom of Contract (1979), 65; English Law Com CP No 167
(2002), para 2.2.
9 J M Keynes, The General Theory of Employment Interest and Money (1949) (henceforth Keynes,
General Theory), 167.
10 Keynes, General Theory, 186 fn 1.
11 Keynes, General Theory, 222.
12 See P Mohr, Economic Indicators University of South Africa (1998) (henceforth Mohr, Economic
Indicators), 179.
14 See Mohr, Economic Indicators, 179.
the future value of £100, one year from now, at 5 per cent simple interest, is
£105; and the present value of the entitlement to receive £100 now instead of
one year from now, calculated at 5 per cent interest, is £95.23.
The rate of interest is determined by a variety of factors, including the
chance of making profit, the rate of inflation, current and anticipated, and
concomitant fall in the purchasing power of money, the risk of payment-
default, the preference of owning rather than renting an asset and the strength
of borrowers’ time preference for consumption. These factors reflect that in
modern economic theory interest is a fundamental price mechanism.
Legally the function of interest is to provide compensation for being
deprived of the use of money. Liability to pay interest may be pre-determined
as in the case of a loan agreement or contingent upon the failure of a debtor
to pay money on the due date, whatever the cause of the indebtedness. Bell
15
in his Commentaries says: “In the ordinary case the damage due for delay in
payment of money is nothing but interest.” The Scottish Law Commission in
its Discussion Paper on Interest on Debt and Damages comments as follows
on the function of interest:16
3.1 The primary purpose of an award of interest is to acknowledge the fact that by
being deprived of the use of money, a creditor has either lost an opportunity to
benefit from the use of the money or, alternatively, has suffered a further loss as a
consequence of not having it to hand.
…
3.2 Similar considerations apply to a sum claimed by way of damages: so long as
the damages remain unpaid the claimant is deprived of that sum of money. If the
claim is for losses incurred in the past, the claimant is in a position analogous to
that of the creditor of an unpaid contractual debt. The effect of an award of
interest is to compensate the creditor by redressing the balance and, in theory,
leaving both parties in the same position as if the debt had been paid when it fell
due or, in the case of damages, as if reparation had been made as soon as the loss
was sustained. Neither the claimant nor the debtor benefits from delaying
settlement or judicial determination of the dispute.
In the comment on Article 17:101 PECL it is said that the obligation to pay
interest upon delay in payment is functionally equivalent to an obligation to
pay damages: “The interest can be regarded as a form of abstract damages,
17
although it is not ordinary damages.”
The South African Supreme Court of Appeal has held that the economic
function of interest (to provide compensation for being deprived of the use of
15 Bell, Commentaries, I, 691, as cited in SME, vol 12, para 1018.

16 Scot Law Com DP No 127 (2005), paras 3.1 and 3.2.
17 PECL, vol 2, 240.
money) is the same for both interest ex contractu and interest ex mora. In
Linton v Corser18 Centlivres CJ said in this regard:
The old authorities regarded interest a tempore morae as “poenaal ende odieus”,
vide Utrechtsche Consultatien 3, 63, p 288. Such interest is not in these modern
times regarded in that light. Today interest is the life-blood of finance, and there is
no reason to distinguish between interest ex contractu and interest ex mora. ... The
question that now arises is whether we should apply the old Roman-Dutch law to
modern conditions where finance plays an entirely different rôle. I do not think we
should. I think that we should take a more realistic view then in a matter such as
this than to have recourse to the old authorities.
19
In Bellairs v Hodnett the function of interest is described as follows:
under modern conditions a debtor who is tardy in the due payment of a monetary
obligation will almost invariably deprive the creditor of the productive use of the
money and thereby cause him loss. It is for this loss that the award of mora interest
seeks to compensate the creditor.
The quantification of the loss compensated for by interest should be deter-

mined according to the notional proceeds of “productive use of the money”
in the market. The rates offered in the market and in particular the possibility
of obtaining compound interest on an investment should therefore be taken
into account. However, as will be shown below, there is often an imperfect
correlation between the capitalisation of interest in the commercial markets
and interest allowed by way of compensation.
C. HISTORY OF RULES ON CAPITALISATION

(1) Roman law
The history of the regulation of interest in Roman law goes back to the XII
Tables, which already prescribed a ceiling rate in respect of contracts of loan,
albeit in enigmatic fashion on the basis of unciarium fenus (interest of 1⁄12 of
the capital).20 This restriction has left modern scholars puzzling over the
ceiling rate intended, i.e. 81⁄3 per cent, 10 per cent, 831⁄3 per cent, or 100 per
cent, depending on whether the interest had to be calculated per year or per
month, and for a ten-month or twelve-month year.21
Originally compound interest or anatocism may not have been regulated
in Roman law, but in the Republican era it was established that interest on
18 1952 (3) SA 685 (A) at 695H.

19 1978 (1) SA 1109 (A) at 1145G.
20 K Verboven, “The Sulpicii from Puteoli and usury in the early Roman empire” (2003) 71 TR at 7.
21 See Zimmermann, Obligations, 166–167.
overdue interest could be charged only after one year. Cicero, in a letter to
Atticus, refers to both the initial legality of anatocismus anniversarius and its
subsequent prohibition.22 In 51 BC the senate decreed that interest would be
reduced to 1 per cent per month (usura centesima) and that compound
interest (anatocismus) would not be allowed. This limit seems to have
remained in force under Caesar.23 In the early Empire rules on interest
involved three basic principles: (1) Interest rates were fixed and the general
limit was 1 per cent a month (usura centesima). Simple interest was available
24
in a variety of situations, such as in the case of late payment of a debt.
Higher interest rates were allowed in respect of enterprise-lending, as in the
case of foenus nauticum and loans for the training and development of
25
professional sportsmen. (2) Compound interest (usurae usurarum) was not
26
permitted. (3) The total sum of interest paid by the debtor to his creditor
could not exceed the original amount of the loan (usurae supra duplum). The
origins of these three principles, however, and their practical effectiveness
27
are not clear.
The restrictions on interest rates and compound interest in Roman law, as
set out above, were exceptional in the context of a legal system that generally
favoured freedom of contract. Free Roman citizens were supposed to be able
to look after their own interests and the paterfamilias was supposed to
protect the weak and the vulnerable such as women, children and slaves.28
Generally in contracts of sale whatever price was agreed upon could be taken
to represent a fair price in the particular circumstances. Sharp practice was
moderated by remedies such as those based on dolus or latent defects.
Generally, therefore, Roman law recognised the autonomy of contracting
parties to construct their own deals. Prominent exceptions to the general
absence of price-control measures in the Roman law of contract were the
29
restrictions on interest rates and the laesio enormis doctrine. Restrictions
on interest rates applied to the contract of loan (mutuum), where interest, the
30
price element of mutuum, had to be promised by way of a separate stipulatio.
22 Cicero, Ad Atticum, V 21, [11], [12], [13]. The Latin text is available at http://web.tiscali.it/latino/
Cicerone_epistole/ad_atticum_5.1.htm (accessed 30 March 2005); and for a translation see D R
Shackleton Bailey, Cicero Letters to Atticus, vol 2 (1999), 98–103.
23 Verboven (2003) 71 TR at 8.
24 D 22.1.32.2.
26 D 22.1.29; C 2.11.20; C. 4.32.28.
27 Verboven (2003) 71 TR at 7, 8.
28 Zimmermann, Obligations, 256.
30 Zimmermann, Obligations, 258.
The restrictions in Roman law on interest generally and compound

interest specifically were later adopted and reinforced in the doctrine of the
Christian Church on usury, dealt with in the following section.
(2) Policy on interest and capitalisation

Restrictions on the recovery of interest by means of usury laws are among the
oldest and most prevalent forms of economic regulation.31 In the notes to
Article 17:101 PECL, dealing with the capitalisation of interest, it is stated
that the basis of differences in national rules on capitalisation or “interest for
delayed payment of interest” is “the differing impact of religious and ideolo-
32
gical conceptions”. Some of the considerations underlying the historically
perceived illegitimacy of interest (and therefore of compound interest) are
briefly referred to below. The purpose is only to indicate certain themes that
form the background to the lingering reluctance in modern legal systems to
accept compound interest or capitalisation. Religious and emotional factors
have been at play in this ancient debate and some of these factors exert
influence up to the present day.
The taking of interest is of course a precondition to the taking of compound
interest. If interest is bad, then compound interest is worse. The English Law
Commission in its 2002 Consultation Paper on Compound Interest noted the
common policy concerns in this regard:33
Compound interest being interest on interest, it is hard to think of any principled
argument against the legitimacy of compound interest that does not also impugn
interest as such.
A prominent theme in this debate has been that interest necessarily involves
the exploitation of the poor by rich and powerful creditors and that the taking
of interest is therefore unjust and sinful, flouting the virtues of humility and
charity.34
Another theme has been that money is sterile and that the “breeding” of
money from money is unnatural.35 The visible, calculable and progressive
“growth” of a loan carrying interest appeared to be something unnatural and
31 See Keynes, General Theory, 351: “Provisions against usury are amongst the most ancient
economic practices of which we have record.”
32 PECL, vol 2, 241.
33 Law Com CP No 167 (2002), para 4.12.
34 N N Bowsher, “Usury laws; harmful when effective” Federal Reserve Bank of St Louis Review
(Aug 1974), 16.
35 E L Glaeser & J Scheinkman, “Neither a borrower nor a lender be: an economic analysis of
interest restrictions and usury laws” (1998) 41 Journal of Law and Economics 1.
distasteful. The taking of interest appeared to be an illegitimate way of

earning income without labour.36
Also influential was the idea of a “just price” (pretium iustum); that price
should be a construct of social will and not private will; and that interest is
also a price that should be subject to objective criteria of justice.37
The essence of usury was seen as being “pure interest” that was stipulated
in advance for a loan of money or wares. The objectionable nature of this kind
of interest was that it was pre-determined, certain and, whether the borrower
38
gained or lost, the usurer took his pound of flesh, so to speak.
The Christian Church has been the most powerful force in the shaping of
law and practice on interest in Europe. The restrictions in Roman law on
interest generally and compound interest specifically were adopted and rein-
forced by the Christian Church in medieval times, leading up to the Third
Lateran Council of 1175, which provided for the excommunication of
39
usurers.
Certain passages in the five books of Moses (Pentateuch) and also in Psalm
15 explicitly forbid the charging of interest, but some of these passages
suggest that the ban on interest only applied among the Jews (“brothers”) and
that it was aimed primarily at loans to the indigent. The passages occur
among other appeals to social justice and appear to be aimed at protecting
the poor, so that they do not reduce themselves to a further level of poverty
where they would be burdens on the community.40 In the New Testament the
parable of the talents suggests the condonation of interest and much has been
41
written on reconciling this message with Christian doctrine.
Usury laws were primarily intended to curb wasteful and extravagant
consumption. In Christian doctrine, as in Roman law, restrictions on lending
at interest were primarily focused on consumption loans, where the cost to
42
the borrower was not offset by production benefits. In the Vulgate version
of Luke’s prohibition on lending, the word mutuum was chosen to refer to the
prohibited loans, suggesting that the focus was on consumption loans. Aquinas,
36 See H G Ulrich “Das Zinsnehmen in der Christichen Ethik”, in M Vollkommer (ed), Der Zins in
Recht, Wirtschaft und Ethik (1989), 61.
37 See Ulrich (note 36 above) at 63.
38 See R H Tawney, Religion and the Rise of Capitalism (1938, reprint 1948) (henceforth Tawney,
Religion and Rise of Capitalism), 54–55.
39 Tawney, Religion and the Rise of Capitalism, 58.
40 Glaeser & Scheinkman (1998) Journal of Law and Economics 1 at 21.
41 E Kerridge, Usury, Interest and the Reformation (2002) (henceforth Kerridge, Usury, Interest
and the Reformation), 6–7.
42 Tawney, Religion and the Rise of Capitalism, 50–51.
one of usury’s harshest critics, differentiated between consumption and pro-

duction loans.43
The motives of the Christian Church in respect of interest may not have
been entirely pure. It has been argued that usury restrictions were kept in
place because the Christian Church, a prominent borrower, wanted to lower
the price of goods it needed to buy. The Church could also have had an
incentive to support strict usury laws because it often seized the assets of
44
convicted usurers on their death. The formal legal position of the Church
on usury was in any event by no means adequately reflected commercial
45
reality. Errant members of the Church often charged usurious rates and so
46
did the Jewish lenders, who were immune to threats of excommunication.
Protestant reformers made a distinction between sinful usury and legiti-
mate interest and the Reformation led to widespread liberalisation of the
usury laws. Christian doctrine in fact had never involved a blanket ban on the
47
taking of interest on loans. Kerridge argues that inconsistent terminology
48
was the cause of much confusion on doctrine.
Anti-interest sentiments are by no means restricted to the Christian faith.
In India early Vedic law restricted interest rates and condemned usury as a
major sin. Interest rates were set according to the level of risk involved (loans
for forest or sea travel attracted higher rates of interest); and there was also a
clear distinction between production-related and consumption-related loans.49
A common practice to avoid usury laws for productive loans was to
incorporate the lender into the productive enterprise with an equity stake.
The Talmud specifically allows and regulates this form of finance and, on
account of the aversion to interest in the Islamic religion, Islamic banking is
50
based almost entirely on the creation of lender equity rather than debt.
Interest and usury have featured prominently in philosophy and literature.
Plato and Aristotle both viewed money lending as immoral and Dante placed
43 Glaeser & Scheinkman (1998) 41 Journal of Law and Economics 1 at 23.

44 Tawney, Religion and the Rise of Capitalism, 41–42; Glaeser & Scheinkman (1998) 41 Journal of
Law and Economics 1 at 2, 25.
45 Tawney, Religion and the Rise of Capitalism, 56–57.
46 Tawney, Religion and the Rise of Capitalism, 42, 49; Glaeser & Scheinkman (1998) 41 Journal of
Law and Economics 1 at 24.
47 Tawney, Religion and the Rise of Capitalism, 54.
48 Kerridge, Usury, Interest and the Reformation, Introduction, 5–6.
49 Glaeser & Scheinkman (1998) 41 Journal of Law and Economics 1 at 19 n 33.
50 On the lending practices of Islamic banks see Carrim v Omar 2001 (4) SA 691 (W), where the
nature of the Shariah-compliant “unrestricted Mudhaarabah contract” is examined. See further
generally Glaeser & Scheinkman (1998) 41 Journal of Law and Economics 1 at 23.
the usurers of Cahors in the same area of hell as the denizens of Sodom.51
Shakespeare’s Shylock has become the metaphor for greed and the immor-
ality of moneylending.52
From a political point of view the pervasive restriction on interest over the
centuries is somewhat surprising. It seems to indicate that borrowers often
possessed more political power than lenders, which seems implausible.53
This is exemplified by the special interest rate restriction applicable in the
time of Justinian to the Roman political elite, the senators, many of whom
had thriving moneylending businesses. At work may have been Justinian’s
Christian beliefs, moving him to act as a benevolent dictator and to enforce
exemplary commercial behaviour on the part of the ruling political elite, who
had to accept 4 per cent instead of the usual 6 per cent interest on their
54
moneylending operations.
Theories on the time value of money and inflation were late in developing
and the historical arguments on interest and usury generally fail to explain
why the charging of a price for money is any different from the charging of a
price for other goods. Viewed retrospectively in terms of modern economic
theory usury laws over the centuries may have intended, at least partially, to
narrow the income gap between rich and poor; and consequently interest
rate restrictions were enforced more rigidly when income inequality was high
and growth rates were low.55 Another aim could have been to curb interest
rates which, in a world generally regarded as highly unsafe, would have risen
56
too high to permit borrowing for investment.
D. MODERN THEORY ON REGULATION OF INTEREST
Whereas the law on interest and usury was historically based primarily on
moral and religious considerations one would expect modern law on interest
to be consistent with current economic policy and commercial realities. The
prevailing view in modern economic theory is that governments do well to
refrain from controlling prices in most markets, because experience has shown
that in free competitive markets more goods are produced at lower prices
51 See Tawney, Religion and the Rise of Capitalism, 42; Glaeser & Scheinkman (1998) 41 Journal of
Law and Economics 1, nn 40, 41, 42.
52 On the terminology associated with Shylock see Kerridge, Usury, Interest and the Reformation,
Introduction and 8.
53 Glaeser & Scheinkman (1998) 41 Journal of Law and Economics 1 at 2–3.
55 Glaeser & Scheinkman (1998) 41 Journal of Law and Economics 1 at 26–27.
56 See Keynes, General Theory at 351.
than in markets subject to price controls. This approach applies also to the
price of credit in the market and underlies the absence of usury legislation in
many countries, as in Europe generally and in Scotland specifically. South
Africa is a mixed system in respect of interest regulation, as will be shown
below.
The economic argument for restrictions on compound interest is that such
restrictions at least assist in staving off the disproportionately oppressive
effect of exponential growth of interest costs on poorer borrowers. Where
compound interest is charged, and the borrower becomes unable even to
service the loan, the effect is destructive. An exponential increase in interest
is more frightening and unpredictable than a linear increase, and liability for
compound interest might be a slippery slope to hopeless debt. This is said to
be the consideration underlying the prohibition of compound interest in the
57
developing world, particularly in some Latin American countries.
The current policy approach in South Africa is to protect consumers against
extortion by setting rate ceilings where these can be enforced relatively
successfully. The system is a mixed one. In the small or “micro-lending” loans
sector, where rate ceilings cannot be enforced effectively and where normal
market-related rate ceilings would in any event be economically unrealistic in
view of high transaction costs, the policy since 1992 has been to exempt defined
small loans from the application of the Usury Act 73 of 1968 (referred to
below as “the Usury Act”). Such loans were made subject to other regulatory
measures, including registration of “micro-lenders” and the prohibition of
58
certain lending and collection practices. In respect of consumer credit
contracts governed by the Credit Agreements Act 75 of 1980 (below referred
to as “the Credit Agreements Act”) and the Usury Act, involving medium-size
consumer debt (loans, credit sales and leases of between R10,000 and R500,
59
000) compound interest is prohibited, except in case of default (mora).
Most medium-sized consumer transactions governed by the Usury Act
involve pre-calculated monthly instalments, providing lenders with a monthly
interest income corresponding to or surpassing that available in the commer-
cial investment market. In this context the commercial need for compound
interest or capitalisation arises mainly in cases of default (mora), where it is
57 Law Com CP No 167 (2002), para 4.10.

58 See generally Report on Costs and Interest Rates in the Small Loans Sector, published as
Government Notice No 706 of 21 July 2000 in Government Gazette No 21381 of 21 July 2000 at
11–13, 18.
59 Section 4 of the Usury Act 73 of 1968 provides for the recovery of additional finance charges in
case of payment default.
allowed in a limited form, as indicated in the preceding paragraph. In the

case of debts not covered by consumer protection legislation no ceiling rates
apply and compound interest is in principle allowed, subject to the in duplum
rule and to common law rules on extortionate interest, as detailed in section
E(3) below. The policy on capitalisation in cases of default (mora) is con-
sistent with the economic reality that compensation for being deprived of the
use of money should be calculated according to the compound interest rates
offered in the commercial investment market.
E. REGULATION OF CAPITALISATION BY CONTRACT AND

TRADE USAGE
(1) Enforceability of agreements on capitalisation

Article 17:101(1) PECL provides for annual capitalisation in respect of
certain types of debt; and Article 17:101(2) PECL makes the capitalisation
provision in Article 17:101(1) PECL subject to a specific contract between
the parties. In some European systems parties are free to agree in advance on
capitalisation of interest. In others, for instance in Germany, an agreement on
capitalisation is given effect only if entered into after interest has fallen due,
although financial institutions are exempted. In other systems an agreement
on capitalisation is only permitted after a specific period has elapsed since the
interest first fell due, the period being a year in some cases and six months in
others. Italy requires that in agreements on capitalisation of interest in credit
and savings contracts the rest period and interest rate be specifically agreed
upon.60
In Scotland compound interest is allowed where a contract or trade usage
61
specifically provides for it. Lord Justice-Clerk Inglis put it as follows in
Douglas v Douglas’s Trustees in 1867: “A claim for compound interest, with
annual rests, is a demand which can only be maintained, either in a case of
fixed usage in commercial dealings, or where there has been an abuse in a
62
party trusted with funds and violating his trust.”
63
The situation in South Africa is similar and has been described as follows:
Our usury legislation has never outlawed the charging of compound interest.
Although such a prohibition is mentioned in the old authorities, it has been held to
60 PECL, vol 2, 242 (national notes).

61 SME, vol 12, para 1038; Scot Law Com DP No 127 (2005), para 8.7.
62 Quoted by Gloag, Contract, 683 n 13.
63 In Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd 1995 (4) SA 510 (C) at 566D–F.
have been abrogated by disuse in the modern law. ... Compound interest will be
admitted provided only that it has been agreed to either expressly or by custom. ...
In South Africa the common-law rule against compound interest was held to
have been abrogated precisely because of evidence that it was the universal
practice of banks in South Africa to charge compound interest.
64 65
There is recognition in Scotland and South Africa that the operation of
current accounts involves an implied agreement on capitalisation of interest.
There is a distinction in banking practice between accrual of interest and
capitalisation.66 Banks customarily calculate interest on overdrawn current
accounts on a daily basis and debit the accumulated total to the account,
usually on a monthly basis. The entries passed to the account and the running
balance which they generate are reflected in a bank statement which is usually
sent to the customer at regular intervals.67 However, the daily debiting of
interest does not constitute capitalisation or compounding. It is only at the
agreed rests or intervals, usually monthly, that the accrued interest is treated
as an accretion to the capital, with the effect that interest is from then on
taken on the total sum.
(2) Unconscionability standards

In the United Kingdom the Consumer Credit Act prohibits “extortionate”
and “grossly exorbitant” interest pricing. Extortionate credit bargains can be
re-opened under section 137 of the Consumer Credit Act, 1974. The Act
defines a credit bargain as extortionate if it “(a) requires … payments …
which are grossly exorbitant, or (b) otherwise grossly contravenes ordinary
principles of fair dealing.” Courts take into account factors such as the
following: the standard of sophistication of the borrower and financial
necessity or pressure. Borrowers for business speculation do not qualify for
68
assistance. The Consumer Credit Act directs the court to evaluate the rate
charged in relation to prevailing interest rates and the borrower’s risk. It is
apparent from English cases that almost anything goes when the debtor has a
bad credit history, minimal collateral, or both. Rates of 177 per cent, 120 per
cent and 80 per cent have been upheld in such cases.69
64 Gloag, Contract, 684.
65 Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A) at 384C–G.
66 See generally R M Goode, Consumer Credit Law (1989) (henceforth Goode, Consumer Credit
Law), 310–311.
67 Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd 1995 (4) SA 510 (C) at 568E–I.
68 See generally Goode, Consumer Credit Law, 756–762.
69 S W Bender, “Rate regulation at the crossroads of usury and unconscionability: the case for
regulating abusive commercial and consumer interest rates under the unconscionability
standard” (1994) 31 Houston LR 721 at 781–787.
In Germany extortionate interest bargains are void where there is substan-

tive disparity between the benefit of the parties to the credit transaction and
the borrower’s weakness has been exploited. Gross pricing disparity alone
may be actionable under the general prohibition of transactions contrary to
public policy in terms of §138(2) of the BGB. German courts look at interest
rates with reference to comparable market transactions, borrower risk, and
70
the effects of inflation.
The case law on §138(2) of the BGB in respect of extortionate interest
rates has been summarised as follows:
A creditor loses all claims to the payment of interest and other cost elements if in
a consumer credit contract as it is regulated by the Consumer Credit Act the
annual percentage rate of charge (APR) as defined by the Consumer Credit Act
lies more than relatively 100 per cent or absolutely 12 per cent over the average
interest rate of instalment credit published monthly by the central bank. If other
harsh conditions burden the consumer 90 per cent will suffice. In cases of
refinancing into a worde credit contract a ceiling of 70 per cent for the new credit
71
leads to the same effect.
In Germany an extortionate interest rate was initially a bar to recovery of both

principal and interest, but courts now allow recovery of the principal in such
a case. The lender cannot recover any interest, not even interest reduced to a
fair rate. In contrast, English courts reduce an excessive rate to a fair one.
Commentators criticise Germany’s denial of all interest as harsh and inflexible,
but others in England feel that merely reducing the rate does not deter unfair
72
pricing, and advocate reform to render the whole bargain unenforceable.
In South Africa general rules on public policy can be invoked in respect of
agreed interest in contracts not governed by consumer credit legislation
(generally contracts where the principal exceeds R500,000). Excessive inter-
est can be regarded as extortionate and therefore against public policy or
good morals. There is no such thing as a “common law rate of interest” (certum
modum usurarum), but the circumstances of a particular case could indicate
that the stipulated interest is extortionate or usurious.73 In Reuter v Yates,74
for instance, it was held that interest at 60 per cent on a small loan for a short
period was not usurious. Agreement on a usurious interest rate does not
70 Bender (1994) 31 Houston LR 721 at 783–787.
71 U Reifner “Good faith: interpretation or limitation of contracts? The power of German judges in
financial services law”, in R Brownsword, N J Hird & G Howells (eds), Good Faith in Contract:
Concept and Content (2000), 269 at 295.
72 Bender (1994) 31 Houston LR 721 at 783–787.
73 See the summary of the position in common law by N J Grove, “Klein Lenings en die Woekerwet”
(1993) 56 THRHR 657 at 662–663.
74 [1904] TS 855.
necessarily make the contract void in its entirety. Arguably a court has the
power to declare a contract partially enforceable to the extent that the
interest is not usurious, so that the creditor may claim his capital and so much
of the interest which is not usurious and can be regarded as reasonable.
(3) Capitalisation under the Usury Act in South Africa

The Usury Act applies to credit transactions, leasing transactions and money-
lending transactions. A moneylending transaction is widely defined, to in-
clude credit card transactions, certain sales of immoveable property and
improvements to immoveable property.
The Act has two main purposes: to limit “finance charges” (a defined
concept including interest and costs) and to ensure adequate disclosure of all
the terms of the contracts governed by the Act, in particular payment terms
and interest. Finance charges are calculated on the “principal debt”. Any item,
expenditure or amount which is not covered by the definition of “principal
debt” or “finance charges” will be recoverable only if it constitutes a cost item
specifically authorised in terms of section 5 of the Act.
Section 2 of the Act provides for maximum rates in respect of the different
transactions governed by the Act. Rates vary according to the value of the
transaction. The registrar has the power to determine rates by notice in the
Government Gazette in accordance with the directions of the responsible
minister (who in the past had to publish it himself). This is done frequently to
adjust maximum finance charge rates to the interest rates prevailing in the
market.
It has been held that section 5 of the Usury Act does not prevent the
recovery of compound interest (capitalisation) if an agreement to that effect
75
exists. However, the correctness of this decision is open to question, in view
of the provision in section 2(6)(a) of the Usury Act that a creditor may not levy
finance charges calculated according to shorter or more periods than those
according to which instalments or the outstanding balance of the principal
76
debt must be paid. This section prevents a creditor, for instance, from
75 Interaccess (Pty) Ltd v Van Dorsten [1999] 2 All SA 561 (C) at 574. The court held that s 5 of the
Usury Act does not specifically preclude the charging of compound interest and that compound
interest is claimable provided there is agreement between the parties to that effect (referring to
National Bank of South Africa v Graaf (1904) 2 SC 457 at 462).
76 There is one exception, namely in the case of a moneylending transaction where finance charges
may be recovered on a monthly basis if instalments are paid at intervals of longer than a month. It
would seem that s 2(7) allows the moneylender to recover his finance charges in shorter periods,
but that the rate must still be calculated in accordance with s 2(1)(a). In other words, s 2(7) permits
him to obtain his interest sooner, but at no higher a rate than that allowed by s 2(1)(a).
levying interest on a weekly basis where instalments are payable monthly in

order to earn more interest. Furthermore, in terms of section 5(1)(c) finance
charges are recoverable only on the principal debt and on certain specified
disbursements and therefore not on other finance charges.
The Usury Act requires pre-calculation and specific disclosure of instal-
ments, on the basis of simple interest over intervals corresponding with the
instalment payments. Under this system capitalisation occurs on a one-off
basis upon default, where further interest is taken on both the outstanding
principal and the outstanding interest, as indicated below in section G(3).
(4) Small loans in South Africa

South Africa has an advanced financial services sector, but it provides bank-
ing services and credit to not more than half of the population. Others
depend on traditional savings and loan institutions and providers of small
loans, known as micro-lenders. Small loans overwhelmingly finance con-
77
sumption or servicing of other debts, rather than production.
Extortionate lending practices feeding on adverse socio-economic condi-
tions create massively excessive indebtedness among lower-income groups.
An exemption notice under section 15 of the Usury Act exempts loans of less
than R10,000 from compliance with the maximum interest rates set under
the Act, provided certain conditions are met. These conditions involve
increased administrative regulation of lenders and detailed regulations on
lending and enforcement practices have also been enacted.
A survey of registered short-term cash lenders in South Africa in 2000
shows that, on average, these lenders charge an interest rate of 30 per cent
per month, all fees included. Interest rates vary according to the term of the
78
loan.
Many retail stores have entered this market. After small loans were deregu-
lated in terms of the Usury Act many furniture dealers and other retail stores
have entered the lending market by registering as micro-lenders and pro-
moting loans to their regular clients. In this manner they provide finance at
79
much higher rates, bypassing the Credit Agreements Act and the Usury Act.
80
Mashonisas are lenders who operate in the townships of South Africa,
providing short-term loans, mostly for no longer than a month. Interest rates
77 See generally Report on Costs and Interest Rates in the Small Loans Sector, published as
Government Notice No 706 of 21 July 2000 at 35.
78 See generally Report on Costs and Interest Rates in the Small Loans Sector at 28, 33.
79 See Examination of Costs and Interest Rates in the Small Loans Sector, 34–35.
80 The term is of Zulu origin and means “those who bring you down”.
average about 50 per cent per month and mora interest is capitalised.
Stokvels,81 burial societies and rotating savings and credit associations are
informal savings and loan organisations that receive savings from members
and then invest the funds or make loans to members on a rotating basis. The
repaid capital and interest go back into the group fund for redistribution to
the members. Interest on loans is taken as a form of additional forced saving
by the borrower. There are an estimated 800,000 of these institutions with
more than 8 million members. Funds are normally distributed to members
on a rotating basis at group meetings, as a form of dividend. Little is known
about enforcement procedures of these lenders, but there is no reported
judgment involving any of these lenders and no indication that normal legal
82
processes are involved for collection of debts.
F. CAPITALISATION AND THE IN DUPLUM RULE IN SOUTH

AFRICA
(1) General nature, effect and rationale of in duplum rule
83
The effect of the in duplum rule (a rule deriving from Roman law and still
forming part of South African law but not of Scots law) is that interest stops
running when the unpaid interest equals the outstanding capital.84 When the
debtor repays a part of the interest, so that the outstanding interest amount
drops below the outstanding capital amount, interest again begins to run
until it once again equals the capital amount. This rule applies not only to
moneylending transactions, but to any kind of transaction involving the
payment of interest on an amount due in terms of the transaction.85 The rule
applies only to interest outstanding at a particular time and does not limit the
total amount of interest payable by the debtor by way of instalments or in
86
piecemeal fashion for the duration of a particular transaction.
The rationale for the rule is simply to protect the debtor against liability for
an accumulated interest debt that exceeds the outstanding capital debt. The
rule and the policy considerations underlying it were simply described by
81 The term “stokvel” is said to have originated in the Eastern Cape area as a black version of the
periodical “stock fairs” held by white farmers.
82 See generally Report on Costs and Interest Rates in the Small Loans Sector at 35–36.
84 See generally M M Loubser & M A Muller “Bank overdrafts: Limitation of interest by the in
duplum rule; and prescription” (1998) 115 SALJ 598–612.
85 LTA Construction Bpk v Administrateur, Transvaal 1992 (1) SA 473 (A) at 482.
86 LTA Construction Bpk v Administrateur, Transvaal at 480.
Joubert JA in LTA Construction Bpk v Administrateur, Transvaal87as being

part of daily life; not an anachronism; and serving a useful purpose to protect
debtors.
The rule therefore remains part of South African law and it is most likely to
find application where a debtor has an open account with a trader or a
current account with a bank, allowing the purchase of goods or withdrawal
money, subject to a certain credit limit, without the obligation to pay regular
instalments. Should the interest debt become equal to the capital debt (even
though the overall credit limit has not been reached) the creditor could find
himself unable to recover all the interest that has accumulated in the account.
(2) Capitalisation
Because of the fluctuating balance of an open account with a trader or a
current account with a bank, interest is often calculated daily on the
outstanding balance of the account as at close of business on that day. At the
end of each month the individual amounts of daily interest for that month are
added to the outstanding amount.
In Standard Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd
88
(In liquidation) the Supreme Court of Appeal considered the effect of the
banking practice of capitalising interest on a current account on the
operation of the in duplum rule. The court held that the parties cannot by
agreement or conduct waive or alter the effect of the in duplum rule. The
rule is based on public policy and is designed to protect borrowers from
exploitation by lenders. As such it cannot be waived by borrowers and cannot
be altered by banking practice.89
The Supreme Court of Appeal also held that the practice of capitalisation
of interest by bankers does not result in the interest losing its character as
such for the purposes of the in duplum rule. If lenders were entitled to
employ the expedient of a book entry to convert what is interest into capital,
this would afford an easy way to avoid not only the in duplum rule but also
90
prescription and usury legislation.
To apply the in duplum rule, the outstanding capital amount of the debt
must be determined, and this in turn could depend on how credits to the
account have been allocated or appropriated. In the Standard Bank case the
87 At 482F–H.
88 1998 (1) SA 811 (SCA).
89 At 828C–D.
90 At 828I–J.
court held the rule to be that payments should be allocated first to interest
and then to capital.91
On the application of the rule pendente lite the court in the Standard Bank
case held that the purpose of the rule is to protect borrowers from exploita-
tion where lenders permit interest to accumulate excessively. A creditor who
has instituted action cannot be said to exploit a debtor if the latter, assisted by
the delays inherent in legal proceedings, keeps the creditor out of his money.
The court held that therefore no principle of public policy justifies providing
the debtor with protection pendente lite against interest in excess of the
outstanding capital amount. A creditor can control the institution of litigation
and can, by timeously instituting action, protect himself against loss of
interest by operation of the in duplum rule. However, the creditor has limited
control over delays caused by the litigation process and the rule should
therefore be suspended as soon as the legal process begins, i.e. upon service
of the initiating process. The result is that the outstanding interest, frozen at
the level of the outstanding capital amount, then begins to run again at the
applicable rate of interest, up to the time of judgment. Once a judgment has
been delivered interest begins to run on the judgment debt, which may
already contain a component of accumulated interest equal to the capital
component, or exceeding the capital component as a result of the suspension
of the in duplum rule pendente lite. The judgment reinforces the existing
debt by affording the creditor the right to implement a process of execution
and interest begins to run from the date of the judgment on the judgment
debt as a whole, irrespective of the size of its interest component. The in
duplum rule then applies again to the judgment debt as a whole, the policy
consideration being that after obtaining judgment the creditor is in duty
bound to execute and bring to a close the further accumulation of interest.
The effect is that interest may again accumulate on the judgment debt, but
92
only until the interest equals the amount of the judgment debt.
Arguably the in duplum rule is arbitrary in simply limiting outstanding
interest to double the capital and its reception into modern South African law
has been sparsely and unconvincingly justified. It takes no account of the
effect of fluctuating interest rates on the time that it takes for unpaid interest
to equal the outstanding capital and, insofar as it is supposed to penalise a
tardy creditor it usurps the function of prescription.
91 At 831I–832C.
92 At 834B–H.
G. MORA INTEREST
(1) Entitlement to mora interest

In Roman law simple interest was available in a variety of situations, such as
93
in the case of late payment of a debt, but interest on interest was from 51
94
BC and still under Justinian forbidden in all circumstances. Medieval
lawyers argued that interest payable on account of delayed payment (mora)
was not subject to usury rules, because such interest serves to compensate
95
the creditor for damages. Mora thus became one of the most important
causes for awarding interest.
In both Scotland and South Africa the courts accept without requiring
special proof that a party who has been deprived of the use of his capital for
a period of time has suffered a loss. At the same time it is accepted that in the
normal course of events such a party will be compensated for his loss by an
award of mora interest. Scots law has distinct rules on what constitutes
“wrongful withholding” of payment, to create a liability for interest.96
On the purpose of mora interest the comment on Article 17:101 PECL
states that the obligation to pay interest upon delay in payment is functionally
equivalent to an obligation to pay damages. “The interest can be regarded as
97
a form of abstract damages, although it is not ordinary damages.” Interest is
not a species of ordinary damages and the general rules on damages do not
apply. Interest is owed without proof of loss and the aggrieved party is entitled
98
to it without regard to whether reasonable steps were taken to mitigate loss.
Although the creditor cannot claim damages for any loss already compensa-
ted for by the payment of interest, he or she is entitled to additional damages
99
not compensated for by the interest.
(2) Mora interest and capitalisation

Article 17:101 PECL provides for the capitalisation of interest every twelve
months and the comment on this Article states that the capitalisation of
interest is justified by the fact that delay in the payment of interest to which
the creditor is entitled deprives the creditor of a due benefit as much as delay
in the payment of the capital itself. Such delay often has a highly detrimental
93 D 22.1.32.2.
94 D 22.1.29; C 2.11.20; C 4.32.28.
97 PECL, vol 2, 240.
98 PECL, vol 1, 451.
99 PECL, vol 2, 240–241.
effect on creditors, especially smaller businesses dependent on cash flow.

Article 17:101 PECL is intended as a sanction for late payment of interest. In
the comment to this Article it is said that capitalisation is “an effective
sanction because of its gradually increasing effect”.100
Article 6:119 of the Dutch Civil Code is of particular interest in relation to
Article 17:101 PECL, because it is the most recent of the major European
Codes (the new Code came into force in 1992) and because of its similarity to
Article 17:101 PECL. It also provides for automatic capitalisation at the end
of each year while the interest remains outstanding. It differs from Article
17:101 PECL in that the creditor is not entitled to prove additional loss as a
101
result of the delay in payment. Like Article 17:101 PECL the Dutch Code
allows the parties to agree on a higher or lower rate than that prescribed by
102
the Code.
The New Zealand Law Commission in its Report on Aspects of Damages:
103
The Award of Interest on Money Claims says the following:
As a matter of general principle, therefore, people kept out of pocket should be
able to recover interest on money owed to them from the date they were entitled
to the money until it is paid in full. The law should compensate plaintiffs
realistically for the loss they suffered (para 10).
Simple interest does not reflect business practice. When money is borrowed,
interest accrues on outstanding balances which include interest charges already
incurred. For example, where a bank lends money to a customer, there will
normally be regular payments of interest during the term of the loan. If payments
are not made, the outstanding interest is capitalised and interest charged upon it.
Where interest does not compound, it fails to compensate adequately the person
to whom money is owed (para 24).
The object of an award of interest in court proceedings is to compensate the
plaintiff for not having the money during the period for which it is due and unpaid
(para 32).
The Scottish Law Commission in its Discussion Paper on Interest on Debt

104
and Damages likewise accepts that interest serves to compensate a creditor
for being deprived of the use of money. By payment default the creditor either
loses an opportunity to benefit from the use of the money or, alternatively,
suffers a further loss as a consequence of not having it to hand.
100 PECL, vol 2, 240.

101 See Hartkamp Asser’s Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht
Verbintenissenrecht Deel I, 11th edn (2000), 461.
102 See Hartkamp Asser’s Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht
Verbintenissenrecht, 464.
103 New Zealand Law Com No 28 (1997).
104 Scot Law Com DP No 127 (2005), para 3.1, 3.2.
The South African Supreme Court of Appeal has held in Bellairs v Hodnett105
that the function of interest is to provide compensation to a creditor who is
deprived by the debtor’s default of the productive use of the money. Capitali-
sation of interest on unpaid debt is allowed in principle, but not expressly
provided for by the Prescribed Rate of Interest Act 55 of 1975. In Davehill
(Pty) Ltd v Community Development Board106 the South African Appellate
Division considered whether it was permissible, in the absence of agreement,
to award interest on statutory interest payable in terms of legislation on expro-
priation. The court held that the rule against interest on interest in Roman
and Roman-Dutch law has become obsolete in modern South African law.
Commercial agreements involving compound interest are commonplace and
on principle mora interest (a species of damages) could also be claimed on
unpaid interest, statutory interest payable for loss of possession and fruits of
land. The wording of the legislation in question will determine whether it
107
allows for such compound interest.
In Scotland the Late Payment of Commercial Debts (Interest) Act 1998
covers business debts for the supply of goods and services. If the Act applies
to a contract the “qualifying debt” created by the contract carries simple
interest. The Act provides for a particularly high rate of interest, but the rate
is simple rather than compound, a situation clearly not in accordance with
commercial realities.108
In Scotland the general rule, as set out in Nash Dredging (UK) Ltd v
109
Kestrel Marine Ltd, is that interest is not allowed on interest, but there are
occasions where accumulation of principal and interest (capitalisation) is
allowed. A claim for compound interest with annual rests is seldom allowed,
but in some cases it may be legitimate to accumulate outstanding interest
with the principal, and then to claim interest on the whole sum outstanding.
The position in Scotland is complicated by the rule that mere non-payment of
a debt is not sufficient to create a liability for interest. Payment must be
110
“wrongfully withheld”.
111
In Maclean v Campbell the court accumulated the principal and the
105 1978 (1) SA 1109 (A) at 1145G.
106 1988 (1) SA 290 (A).
107 In Boland Bank Ltd v The Master 1991 (3) SA 387 (A), e.g., it was held that s 103(2) read with
s 95(1) of the Insolvency Act 24 of 1936, providing for interest “calculated at the rate of eight per
cent per annum”, payable on a secured claim after date of sequestration, is simple interest, not
compound interest.
108 See McBryde, Contract, paras 22-131–22-135.
109 1987 SLT 67.
110 See on the origins of this rule J Murray, “Interest on debt” 1991 SLT (News) 305 at 306–307.
111 (1856) 18 D 609.
interest found due as at the date of citation, and allowed interest on the
accumulated sum from that date, but without rests, which were regarded as
being of a penal nature.
In the Nash Dredging case the court found that both the principal and the
outstanding interest had been wrongfully withheld by the debtor. When the
principal sum was paid the interest remained outstanding and the dispute
between the parties concerned the rate of interest to be applied. The
defenders were not entitled to withhold payment of the interest and so to
avoid paying interest on interest. A defender may be regarded as wrongfully
withholding payment even if no decree had been pronounced for payment.
112
Lord Ross concluded as follows:
It appears to me that a distinction requires to be drawn between interest on
arrears of interest on the one hand and compound interest on the other hand. It is
highly unusual for compound interest to be allowed. “A claim for compound
interest, with annual rests, is a demand which can only be maintained, either in the
case of a fixed usage in commercial dealings, or where there has been an abuse in
a party trusted with funds, and violating his trust.” (Douglas v Douglas’s Trustees
(1867) 5 M 827, per Lord Justice-Clerk Patton at p 836). Compound interest
proper does include rests, but interest on arrears without rests may be allowed
when the arrears of interest are treated as the equivalent of the principal sum
(Napier v Gordon; MacClean v Campbell).
The practical effect of both the South African Davehill case and the Scottish
Nash Dredging case is that arrear interest is at one point (and only once)
added to the principal and from then on simple interest runs on the total.
Lord Ross in the Nash Dredging case specifically made the distinction
between the taking of interest on arrear interest on the one hand and com-
pound interest on the other hand. The former indicates a once-off approach,
whereas the latter indicates recurrence of capitalisation at regular intervals or
rests, i.e. annual or monthly. In terms of this distinction Article 17:101 PECL
would qualify as a provision for compound interest with annual rests. The
South African Davehill case professes to support the taking of compound
interest on arrear debt, but applied only a single or once-off capitalisation.
Lord Ross in Nash Dredging stuck firmly to a once-off capitalisation in a case
where it was clear that both principal and interest were at a particular point
being wrongfully withheld.
If interest is to be regarded as a remedy equivalent to damages for the
non-payment of money due, it is difficult to see how a debtor could success-
fully argue on principle that his creditor should not be put into the position
112 At 68.
that he would otherwise have been in had he had the use of his money time-
ously.113 The reasonable approach would then be to allow compound interest
with recurrent capitalisation, at least annually, as provided for by Article
17:101 PECL.
(3) Additional finance charges under South African Usury Act 73 of

1968
Section 4 of the Usury Act provides for three situations where additional
finance charges may be recovered. They are where a debtor fails to pay any
amount which is owing “in connection” with a contract on the date when the
amount is payable; where the parties agree that the debtor may defer the
payment of an amount; and where the debtor notifies the creditor of his
intention to pay the outstanding debt in one amount before the due date and
he subsequently fails to pay it on that date. When additional finance charges
are recovered in any of these instances it is calculated on the total amount
which is payable but unpaid, for the time of the default or deferment, at the
rate applicable to the principal debt in terms of the instrument of debt.
114
It was decided in Ex parte Minister of Justice that additional finance
charges may be calculated not only on that part of the principal debt which is
owing but also on finance charges which are owing but unpaid. Section 4(2)
of the Usury Act now specifically provides that additional finance charges are
recoverable on “the total amount which is payable but unpaid”. This pro-
vision amounts to a once-off capitalisation of the interest component of every
arrear instalment, not to compound interest with periodic rests. After
capitalisation simple interest runs on the total amount outstanding until date
of payment. The process is repeated in respect of every new instalment that
falls in arrear.
A trade usage is recognised in respect of a debit balance on a current or
cheque account to the effect that arrear interest is capitalised monthly and
further interest is recoverable on the capitalised amount. Additional finance
charges may therefore be capitalised periodically without any express agree-
115
ment to the effect and without any instrument of debt having been executed.
One of the questions which the court had to answer in Ex Parte Minister of
116
Justice was how the additional finance charges are to be calculated, parti-
cularly from what date until what date. The court held that the period during
113 See SME, vol 12, para 1038.
114 1978 (2) SA 572 (A).
115 Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A).
116 1978 (2) SA 572 (A).
which additional finance charges may be recovered in the case of breach of

contract “is the periods commencing on the day after the date on which the
amount in question is payable and ending on the date of payment thereof”.
(4) Mora interest on damages

Article 17:101 PECL is based on Article 9:508 PECL and confers a right to
capitalisation in respect of an unpaid primary contractual debt and not in
respect of secondary obligations such as damages for breach of contract.117
Under common law in both Scotland and South Africa a debtor was not
118
liable for interest on damages. In respect of a claim for unliquidated damages
where the amount is only ascertainable through “a long and intricate
investigation”, the debtor could not be in mora and therefore could not be
119
held liable for interest on the damages prior to judgment.
In South Africa the introduction of section 2A of the Prescribed Rate of
120
Interest Act, under the heading “Interest on unliquidated debts”, changed
the law in this regard. Section 2A, in abbreviated form, provides as follows:
(1) Subject to the provisions of this section the amount of every unliquidated debt
as determined by a court of law ... shall bear interest as contemplated in section 1.
…
(2)(a) Subject to any other agreement between the parties the interest
contemplated in subsection (1) shall run from the date on which payment of the
debt is claimed by the service on the debtor of a demand or summons, whichever
date is the earlier.
…
(5) Notwithstanding the provisions of this Act but subject to any other law or an
agreement between the parties, a court of law ... may make such order as appears
just in respect of the payment of interest on an unliquidated debt, the rate at
which interest shall accrue and the date from which interest shall run.
The new section was obviously aimed at alleviating the plight of a plaintiff
who has to wait a substantial period of time to establish his claim, through no
121
fault of his own, and is paid in depreciated currency. Section 2A(2)(a) lays
down what is to be the general position, namely that interest runs from date
of demand or summons. If a plaintiff seeks interest from an earlier time then
the court must be urged to exercise its discretion under subsection (5). To
obtain a favourable discretionary decision a plaintiff must discharge the onus
of establishing facts justifying such decision. There is no authority in section
117 PECL, vol 1, 451.

118 SME, vol 12, para 1032.
119 Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A).
120 55 of 1975.
2A or in case law for capitalisation or the granting of compound interest on

damages.
The position in Scotland is similar. Under the Interest on Damages (Scot-
land) Act 1958, as amended by the Interest on Damages (Scotland) Act 1971,
a court may grant interest on damages. The court has a discretion to award
interest from the date the right of action arose. It appears, however, that
122
there must be special circumstances before this discretion will be exercised.
The Interest on Damages (Scotland) Act expressly provides that it of itself
123
does not authorise the granting of interest on interest, but also that it does
not affect the running of interest which otherwise would run by virtue of any
124
enactment or rule of law.
As noted above, Article 17:101 PECL is based on Article 9:508 PECL and
confers a right to capitalisation in respect of an unpaid primary contractual
debt and not in respect of secondary obligations such as damages for breach
125
of contract. There is also an economic and commercial justification for
capitalisation in respect of debts for damages, as will be suggested below.
H. CAPITALISATION AND INTEREST AS DAMAGES

In both Scotland and South Africa interest as a form of special damages for
breach of contract is recoverable where such damages flow naturally from
the breach or may reasonably be supposed to have been in the contemplation
of the contracting parties as likely to result therefrom. Article 17:101 PECL is
based on Article 9:508 PECL and deals with primary contractual debts and
126
not with secondary obligations such as damages for breach of contract.
In the South African case of Thoroughbred Breeders’ Association v Price
127
Waterhouse the plaintiff claimed for losses suffered as a result of thefts by
a bookkeeper, which losses and thefts remained undiscovered as a result of
negligence of accountants. The main claim for interest was calculated at the
rate of interest levied by its banker on every individual amount stolen from
the date upon which that particular amount was stolen. Because of the thefts
the claimant’s overdraft, so it was contended, was inflated and the excess
attracted interest at the higher rates charged by a banker to its customer on
121 Adel Builders (Pty) Ltd v Thompson [2000] 4 All SA 341 (A).
122 See McBryde, Contract, para 22–129.
123 Section 1(2)(a).
124 Section 1(2)(c).
125 PECL, vol 1, 451.
126 PECL, vol 1, 451.
127 2001 (4) SA 551 (SCA).
overdraft. Thus formulated, the claim was one not for ordinary mora interest
but for additional damages in the form of interest. The court referred with
approval to the following description of such a claim in Bellairs v Hodnett:128
As previously pointed out, mora interest in a case like the present constitutes a
form of damages for breach of contract. The general principle in the assessment of
such damages is that the sufferer by the breach should be placed in the position he
would have occupied had the contract been performed, so far as this can be done
by the payment of money and without undue hardship to the defaulting party.
Accordingly, such damages only are awarded as flow naturally from the breach or
as may reasonably be supposed to have been in the contemplation of the con-
tracting parties as likely to result therefrom (Victoria Falls and Transvaal Power
Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1 at 22). In awarding mora
interest to a creditor who has not received due payment of a monetary debt owed
under contract, the Court seeks to place him in the position he would have
occupied had due payment been made. The Court acts on the assumption that,
had due payment been made, the capital sum would have been productively
employed by the creditor during the period of mora and the interest consequently
represents the damages flowing naturally from the breach of contract.
The court in the Thoroughbred Breeders’ Association case decided that the
claim for interest qua damages, be it general or special, could not succeed,
because it was not proved that the claimant became liable to its banker for the
additional interest claimed. The claimant had failed to prove that, had it not
been for the thefts, its overdraft would have been reduced by the exact
amounts of the thefts and would not, for instance, have been employed for
another purpose.
In Scotland interest may be recovered as a loss for breach of contract in
terms of the principle established by Hadley v Baxendale.129 This means that
liability for interest or loss of interest on money invested must be capable of
being fairly and reasonably considered as arising in the usual course of things
from the breach of contract, or of being reasonably supposed to have been in
the contemplation of both parties at the time they made the contract, as the
130
probable result of the breach of contract. Courts in Scotland have been
reluctant to award interest in terms of these principles in some cases invol-
131
ving cost overruns or late payment in building disputes. This gives rise to
128 1978 (1) SA 1109 (A) at 1146H–1147C.
129 (1854) 9 Ex 341.
130 See Murray, 1991 SLT (News) 305 at 309–311.
131 See Murray, 1991 SLT (News) 305 at 309–311; and see subsequently Margrie Holdings Ltd v
City of Edinburgh District Council 1994 SC 1; Ogilvie Builders Ltd v City of Glasgow District
Council 1995 SLT 15. In the Ogilvie Builders case it was held that in the construction industry
delay in payment to the contractor might naturally result in the ordinary course of things in his
being short of working capital and so having to incur finance charges as those claimed in this
case in the form of “direct loss and / or expense” under the contract.
the question whether it is not “in the usual course of things” for a creditor in
such cases either to have to borrow money on which interest would have to be
paid, or to divert funds from other sources on which interest is then lost?
Professor F A Mann has asked rhetorically in this regard: “Who would ven-
ture to suggest that a defaulting debtor could not reasonably foresee interest
as the creditor’s loss flowing from the failure to pay?”132 Professor John
Murray has suggested that the answer to this rhetorical question could be:
133
“The Scottish Judiciary”.
134
An example cited in this regard by the English Law Commission is the
135
case of Hartle v Laceys, where a solicitor knew that his client had borrowed
heavily from the bank at relatively high compound rates of interest and that
he needed to sell property to reduce his borrowing. The solicitor acted
negligently, and so lost his client the opportunity to sell. The court found that
interest could be claimed at compound rates as special damages, because the
issue was in the contemplation of both parties. Where such interest is
claimed it must be specifically pleaded as special damage.
Modern commercial realities indicate that a creditor, who is out of pocket
as a result of breach of contract and has to borrow money on which
compound interest would have to be paid, or to divert funds from invest-
ments on which compound interest is then lost, should be compensated
accordingly.
I. CONCLUSIONS
The following are some conclusions on the need for reform of the law on
capitalisation of interest in Scotland and South Africa, with reference to
Article 17:101 PECL as a possible model for reform.
(1) Lack of uniformity

The law in both Scotland and South Africa lacks uniformity and consistency
in its approach to capitalisation of interest. On the position in Scotland Lord
136
Craighill said more than a century ago in Blair’s Trustees v Payne “nothing
can be conceived less amenable to a settled general principle than our law
upon a creditor’s right to interest”, a view still supported by some modern
132 F A Mann, “On interest, compound interest and damages” (1985) 101 LQR 30.
133 Murray, 1991 SLT (News) 305 at 310.
134 Pre-judgment Interest on Debts and Damages Law Com No 287 (2004).
135 [1999] Lloyd’s Rep PN 315, CA; see Law Com No 287, summary, para 2.21.
136 (1884) 12 R 104.
commentators.137 In this regard the Scottish Law Commission has pointed

out significant differences between interest on contractual debts and interest
on damages (injured parties suing for damages may be awarded interest from
a date prior to the date osf judicial demand); differences in the date of
commencement of a creditor’s entitlement to interest depending on the
nature of the claim; anomalies and uncertainties with regard to the awarding
138
of interest for wrongful withholding of payment; and a persisting reluc-
139
tance to allow capitalisation or “interest upon interest.”
The South African system likewise lacks a uniform approach. There is no
effective enforcement of rate ceilings or limitations on capitalisation in
respect of small loans, a market where the exploitation of the poor appears to
be the most likely. Mid-size consumer debt is strictly regulated in terms of
the Usury Act 73 of 1968, by enforcement of rate ceilings and prohibition of
capitalisation, except in case of payment default. Larger commercial debts
fall outside the ambit of the Usury Act and capitalisation by agreement is
allowed, both for regular repayments and in case of default. The application
of the in duplum rule to all debts appears to be an arbitrary and anachronistic
blunt instrument for debtor protection.
(2) Economic and commercial realities

A recurrent theme in the Report of the English Law Commission on Pre-
judgment Interest on Debts and Damages140 and the Discussion Paper of the
Scottish Law Commission on Interest on Debt and Damages141 is that a res-
triction on compound interest or capitalisation ignores commercial realities,
under-compensates the creditor, and therefore reflects poorly on the legal
system, particularly in large commercial disputes. If a claimant should have
had the money earlier, and in fact had it later, he or she has either missed an
opportunity to invest it, or had to borrow to cover the shortfall, in either case
at compound interest. Compound interest is particularly important in long-
running claims. The English Law Commission stated that the introduction of
a power to award compound interest would “remove one of the blots on the
142
English civil justice system”.
The New Zealand Law Commission has expressed similar views:
137 See McBryde, Contract, para 22–118; Murray, 1991 SLT (News) 305.
138 Scot Law Com DP No 127 (2005), paras 3.7 – 3.19.
140 Law Com No 287 (2004).
141 Scot Law Com DP No 127 (2005).
142 Law Com No 287, summary, para 4.3.
Simple interest does not reflect business practice. When money is borrowed,
interest accrues on outstanding balances which include interest charges already
incurred. For example, where a bank lends money to a customer, there will
normally be regular payments of interest during the term of the loan. If payments
are not made, the outstanding interest is capitalised and interest charged upon it.
Where interest does not compound, it fails to compensate adequately the person
143
to whom money is owed.
144
The Law Reform Commission of British Columbia has found that com-
pounding pre-judgment interest is theoretically desirable in that it would
more accurately reflect both the behaviour of investors in the marketplace
and the cost of delay to successful plaintiffs. The Commission accepts that
the basic rationale for making an award of interest is that the defendant has
kept the plaintiff out of his money and should compensate him accordingly.
This objective cannot be achieved adequately if courts are limited to
awarding simple interest rather than compound interest. At higher interest
rates and in cases where the delay between the due date of payment and the
date of judgment is greater, the degree of under-compensation becomes
more acute. Commentators have decribed the antipathy of courts and
legislatures to compound interest as “a relic from the days when interest was
145
regarded as necessarily usurious”.
(3) Capitalisation in respect of both debts and damages

Article 17:101 PECL is based on Article 9:508 PECL and confers a right to
capitalisation in respect of an unpaid primary contractual debt and not in
146
respect of secondary obligations such as damages for breach of contract.
The Principles do not apply to debts for damages in the law of delict. Neither
in Scots law nor in South African law is there authority in statute or case law
for the award of compound interest on damages. The underlying consider-
ation appears to be that compound interest should only run on fixed sums.
Where the court has not yet determined the amount to be paid, the defend-
ant cannot be said to be wrongfully withholding the money and should not
have to pay compound interest.
The Law Commission of England regards this argument as a misunder-
143 Aspects of Damages: The Award of Interest on Money Claims, NZ Law Com No 28 (1994), para
24.
144 Report on the Court Order Interest Act, LRC 90 (1987).
145 R Bowles & C J Whelan “The law of interest: dawn of a new era?” (1986) 64 Canadian Bar
Review 142 at 143. See also Bowles & J Whelan, “Compound interest: could multipliers be the
way forward?” (1986) 136 New LJ 876.
146 PECL, vol 1, 451.
standing of the nature of the interest award, which is to compensate the

claimant for the delay, rather than to penalise the defendant. The Commis-
sion has therefore recommended that no distinction be made between debts
and damages.147 The Scottish Law Commission agrees, because if it is accep-
table to charge interest on damages, such interest becomes a debt like any
other and should therefore attract interest like any other debt.148
Should a distinction be made between pecuniary and non-pecuniary
damages? Non-pecuniary damages are awarded in a variety of different
actions, including personal injury claims and defamation. Such damages are
assessed as lump sums to provide a rough approximation for losses that
cannot be fully quantified in monetary terms. Non-pecuniary damages are
assessed to be broadly correct at the time of the award, to cover both past and
future loss. The award is not necessarily the same as the sum that should have
been paid at the time the cause of action arose. It is suggested, therefore, that
damages for non-pecuniary losses should generally not carry interest, either
simple or compound.
(4) Should consumer debts be excluded?

Compound interest “evokes deep-seated fears”, according to the English
Law Commission.149 Where interest increases in an exponential rather than a
linear way, the outcome may appear to be frightening and unpredictable.
However, in the United Kingdom consumers in many cases already pay com-
pound interest, often at high rates. Contracts for mortgages, bank loans, credit
cards and store cards routinely charge compound interest. As pointed out by
the English Law Commission,150 in most small to medium cases the difference
between simple and compound interest will be relatively small. This was the
basis for its recommendation that a distinction should be drawn between
awards of less than £15,000 and those above £15,000. For those of less than
£15,000 the Commission recommended that there should be a presumption
that interest should be simple. This could be rebutted if the claim has been
particularly long-running, or the creditor can show special reasons for
compound interest, such as having to borrow money at compound rates. In
claims of £15,000 or more, the Commission recommended that there should
be a presumption in favour of compound interest. The Scottish Law
147 Law Com No 287 (2002), summary, para 5.9; and see also Scot Law Com DP No 127 (2005),
para 8.29.
149 Law Com No 287 (2002), summary, para 5.16.
Commission has indicated disagreement, stating persuasively that compound

interest is either fair and correct, or it is not; and if there is no advantage to
compounding on small sums of money, it seems odd that all major financial
institutions charge compound interest on any sum, however small.151
Article 17:101 PECL does not distinguish between different kinds of debt
or on the basis of the size of the debt. In South Africa, as shown above, there
is no effective enforcement of rate ceilings or limitations on capitalisation in
respect of small loans, while mid-size consumer debt is strictly regulated in
terms of the Usury Act 73 of 1968, by enforcement of rate ceilings and
prohibition of capitalisation, except in case of payment default.
It is suggested that the view of the Scottish Law Commission in this regard
is logical and fair, namely that with regard to capitalisation no distinction on
the basis of the size of the debt should be made.
(5) Contractual provisions

Article 17:101 PECL recognises the primacy of contractual ordering. It
provides for annual capitalisation as a remedy for payment default, but this
provision is subject to whatever agreement on capitalisation is concluded
between the parties, for instance on monthly instead of annual capitalisation.
Under Article 6:119 of the Dutch Code, to which Article 17:101 PECL
corresponds closely, the prescribed rate of interest for payment default applies
subject to contractual ordering, but the statutory provision constitutes a
minimum, so that an agreed lower rate is upon delay replaced by the
statutory rate.152
The English Law Commission153 has also recommended that its proposed
general statutory provision for compound interest should be subject to
contractual regulation of interest.
It seems logical and fair that no contract providing for compound interest
should be interfered with, unless it could be considered unconscionable or
extortionate with reference to standard indicators.
(6) Interest as damages

A general statutory provision on capitalisation of interest in respect of
delayed payment, on the model of Article 17:101 PECL, would not affect the

152 See Hartkamp, Asser’s Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht
Verbintenissenrecht Deel I, 11th edn (2000), 464.
courts’ existing powers to award interest as damages. Special damages are

recoverable where such damages flow naturally from the breach or may
reasonably be supposed to have been in the contemplation of the contracting
parties as likely to result therefrom. In these cases judges would continue to
be able to award the actual interest lost – at whatever compounding rate and
interval might be deemed appropriate.
Compound interest would only be recoverable as special damages in the
limited circumstances where liability for compound interest or loss of com-
pound interest on money invested could be fairly and reasonably considered
as arising in the usual course of things from the breach of contract, or of being
reasonably supposed to have been in the contemplation of both parties at the
time they made the contract, as the probable result of the breach of contract.
Modern commercial realities indicate that a creditor having to incur a debt
bearing compound interest as a result of breach of contract, or having to
divert funds from investments on which compound interest is then lost,
should be compensated accordingly.
(7) Calculation – undue complexity?

Calculation of compound interest can be complex, particularly over a lengthy
period with fluctuating rates of interest. Ucòike simple interest calculations
compound interest can be calculated in several different ways. The outcome
will depend, for example, on whether one uses annual, quarterly or monthly
rests, and whether rests occur on a set date (such as the first of January of
each year), or on the anniversary of the start of the debt. Entitlement to
compound interest therefore has the potential to generate disputes. How-
ever, this does not justify restricting or excluding the right to such interest.
The conclusions of the English Law Commission in this regard are
convincing. The Commission considered the only realistic possibility to be
that the parties should calculate compound interest, either themselves or
154
through their legal representatives. Where the claimant seeks a judgment
for compound interest, the onus should be on it to present the calculations to
the court. The Commission also recommended that the Court Service should
produce a computer program to calculate compound interest and make it
readily accessible on its website. An appropriate set of tables covering periods
up to twenty years would be about twenty pages long and the Commission
felt that it would not be an unduly cumbersome document for judges to keep

on their shelves, or for advocates to take to court. It noted that judges would
probably benefit from some training in using the tables.
(8) Intervals for capitalisation

Article 17:101 PECL provides that capitalisation should occur only after
twelve months; and thereafter every twelve months while the debt remains
unpaid. If annual intervals or rests for capitalisation or compounding are
used, there is of course no capitalisation during the first year. The period of
grace of one year before capitalisation occurs replicates the anatocismus
155
anniversarius of Roman law, but it is a questionable practice for the
modern commercial environment.
Annual rests simplify calculations in short-running cases by removing the
need for capitalisation whenever the debt remains unpaid for less than a year.
On a debt that remains unpaid for less than a year compound interest with
monthly rests does not produce results dramatically different from simple
interest. To illustrate, a simple interest rate of 8 per cent would be the
equivalent of a compound rate of 7 per cent after five years, and the equi-
valent of a 6 per cent compound rate after eleven years. After nineteen years,
a simple rate of 8 per cent becomes the equivalent of 5 per cent compound.
More frequent rests would be consistent with current commercial prac-
tice in respect of loans and investments. The main argument in favour of
annual rests is that this may simplify calculation. However, as indicated by the
English Law Commission,156 for debts of over a year, a computer program or
tables using monthly rests would be no more complicated to use than those
for annual rests. The Commission found that the balance of convenience lies
with monthly rests. The aim should be to reflect commercial reality, in parti-
cular normal banking practice, which involves for both the lender and the
borrower that interest is usually compounded at least monthly. This is also
157
the view adopted by the Scottish Law Commission.
(9) Reform in Scotland and South Africa

The main criticism that can be levelled at the current legal position in Scot-
land and South Africa is the lack of uniformity in the rules on capitalisation in
respect of different kinds of debt and the inconsistency in the application of
capitalisation where it is allowed. This is the product of piecemeal

development that historically has been shaped partly by religious doctrine

and emotional aversion to interest generally and compound interest in
particular. The current position does not adequately reflect economic and
commercial realities. In South Africa the general application of the in
duplum rule appears to be arbitrary and anachronistic.
In both Scotland and South Arica there is a need for reform and there
should be a general entitlement to compound interest, as recommended by
158
the Scottish Law Commission. Article 17:101 PECL provides a useful
starting point, but reform should go further, to include capitalisation in res-
pect of all debts. The frequency of capitalisation should reflect current
commercial practice, which usually involves capitalisation on a monthly rather
than on an annual basis. If it is acceptable to charge interest, it becomes a
debt like any other when it is charged. Interest should therefore attract
159
interest like any other debt.

APPENDIX
The Principles of European

Contract Law*
Prepared by the Commission on
European Contract Law
CHAPTER 1: GENERAL PROVISIONS

Section 1: Scope of the Principles
Article 1:101: Application of the Principles
(1) These Principles are intended to be applied as general rules of contract
law in the European Union.
(2) These Principles will apply when the parties have agreed to incorporate
them into their contract or that their contract is to be governed by them.
(3) These Principles may be applied when the parties:
(a) have agreed that their contract is to be governed by “general
principles of law”, the “lex mercatoria” or the like; or
(b) have not chosen any system or rules of law to govern their contract.
(4) These Principles may provide a solution to the issue raised where the
system or rules of law applicable do not do so.
Article 1:102: Freedom of Contract

(1) Parties are free to enter into a contract and to determine its contents,
subject to the requirements of good faith and fair dealing, and the
mandatory rules established by these Principles.
(2) The parties may exclude the application of any of the Principles or derogate
from or vary their effects, except as otherwise provided by these Principles.
Article 1:103: Mandatory Law

(1) Where the law otherwise applicable so allows, the parties may choose to
have their contract governed by the Principles, with the effect that
national mandatory rules are not applicable.
* This reproduction of the text of the Principles of European Contract Law appears with the kind
permission of the Commission on European Contract Law.
367
(2) Effect should nevertheless be given to those mandatory rules of national,

supranational and international law which, according to the relevant
rules of private international law, are applicable irrespective of the law
governing the contract.
Article 1:104: Application to Questions of Consent

(1) The existence and validity of the agreement of the parties to adopt or
incorporate these Principles shall be determined by these Principles.
(2) Nevertheless, a party may rely upon the law of the country in which it has
its habitual residence to establish that it did not consent if it appears from
the circumstances that it would not be reasonable to determine the effect
of the party’s conduct in accordance with these Principles.
Article 1:105: Usages and Practices

(1) The parties are bound by any usage to which they have agreed and by any
practice they have established between themselves.
(2) The parties are bound by a usage which would be considered generally
applicable by persons in the same situation as the parties, except where
the application of such usage would be unreasonable.
Article 1:106: Interpretation and Supplementation

(1) These Principles should be interpreted and developed in accordance
with their purposes. In particular, regard should be had to the need to
promote good faith and fair dealing, certainty in contractual relation-
ships and uniformity of application.
(2) Issues within the scope of these Principles but not expressly settled by
them are so far as possible to be settled in accordance with the ideas
underlying the Principles. Failing this, the legal system applicable by
virtue of the rules of private international law is to be applied.
Article 1:107 : Application of the Principles by Way of Analogy

These Principles apply with appropriate modifications to agreements to
modify or end a contract, to unilateral promises and other statements and
conduct indicating intention.
Section 2: General Duties

Article 1:201: Good Faith and Fair Dealing
(1) Each party must act in accordance with good faith and fair dealing.
(2) The parties may not exclude or limit this duty.
the principles of european contract law 369
Article 1:202: Duty to Co-operate

Each party owes to the other a duty to co-operate in order to give full effect
to the contract.
Section 3: Terminology and Other Provisions

Article 1:301: Meaning of Terms
In these Principles, except where the context otherwise requires:
(1) “act” includes omission;
(2) “court” includes arbitral tribunal;
(3) an “intentional” act includes an act done recklessly;
(4) “non-performance” denotes any failure to perform an obligation under
the contract, whether or not excused, and includes delayed performance,
defective performance and failure to co-operate in order to give full
effect to the contract.
(5) a matter is “material” if it is one which a reasonable person in the same
situation as one party ought to have known would influence the other
party in its decision whether to contract on the proposed terms or to
contract at all;
(6) “written” statements include communications made by telegram, telex,
telefax and electronic mail and other means of communication capable
of providing a readable record of the statement on both sides
Article 1:302: Reasonableness

Under these Principles reasonableness is to be judged by what persons acting
in good faith and in the same situation as the parties would consider to be
reasonable. In particular, in assessing what is reasonable the nature and pur-
pose of the contract, the circumstances of the case, and the usages and
practices of the trades or professions involved should be taken into account.
Article 1:303: Notice

(1) Any notice may be given by any means, whether in writing or otherwise,
appropriate to the circumstances.
(2) Subject to paragraphs (4) and (5), any notice becomes effective when it
reaches the addressee.
(3) A notice reaches the addressee when it is delivered to it or to its place of
business or mailing address, or, if it does not have a place of business or
mailing address, to its habitual residence
(4) If one party gives notice to the other because of the other’s non-
performance or because such non-performance is reasonably anticipated
by the first party, and the notice is properly dispatched or given, a delay
or inaccuracy in the transmission of the notice or its failure to arrive does
not prevent it from having effect. The notice shall have effect from the
time at which it would have arrived in normal circumstances.
(5) A notice has no effect if a withdrawal of it reaches the addressee before
or at the same time as the notice.
(6) In this Article, “notice” includes the communication of a promise,
statement, offer, acceptance, demand, request or other declaration.
Article 1:304: Computation of Time

(1) A period of time set by a party in a written document for the addressee to
reply or take other action begins to run from the date stated as the date of
the document. If no date is shown, the period begins to run from the
moment the document reaches the addressee.
(2) Official holidays and official non-working days occurring during the
period are included in calculating the period. However, if the last day of
the period is an official holiday or official non-working day at the address
of the addressee, or at the place where a prescribed act is to be
performed, the period is extended until the first following working day in
that place.
(3) Periods of time expressed in days, weeks, months or years shall begin at
00.00 on the next day and shall end at 24.00 on the last day of the period;
but any reply that has to reach the party who set the period must arrive,
or other act which is to be done must be completed, by the normal close
of business in the relevant place on the last day of the period.
Article 1:305: Imputed Knowledge and Intention

If any person who with a party’s assent was involved in making a contract, or
who was entrusted with performance by a party or performed with its assent:
(a) knew or foresaw a fact, or ought to have known or foreseen it; or
(b) acted intentionally or with gross negligence, or not in accordance with
good faith and fair dealing,
this knowledge, foresight or behaviour is imputed to the party itself.
CHAPTER 2: FORMATION
Section 1 : General Provisions

Article 2:101: Conditions for the Conclusion of a Contract
(1) A contract is concluded if:
(a) the parties intend to be legally bound, and
(b) they reach a sufficient agreement
without any further requirement.
(2) A contract need not be concluded or evidenced in writing nor is it subject
to any other requirement as to form. The contract may be proved by any
means, including witnesses.
Article 2:102: Intention

The intention of a party to be legally bound by contract is to be determined
from the party’s statements or conduct as they were reasonably understood
by the other party.
Article 2:103: Sufficient Agreement

(1) There is sufficient agreement if the terms:
(a) have been sufficiently defined by the parties so that the contract can
be enforced, or
(b) can be determined under these Principles.
(2) However, if one of the parties refuses to conclude a contract unless the
parties have agreed on some specific matter, there is no contract unless
agreement on that matter has been reached.
Article 2:104: Terms Not Individually Negotiated

(1) Contract terms which have not been individually negotiated may be
invoked against a party who did not know of them only if the party
invoking them took reasonable steps to bring them to the other party’s
attention before or when the contract was concluded.
(2) Terms are not brought appropriately to a party’s attention by a mere refer-
ence to them in a contract document, even if that party signs the document.
Article 2:105: Merger Clause

(1) If a written contract contains an individually negotiated clause stating
that the writing embodies all the terms of the contract (a merger clause),
any prior statements, undertakings or agreements which are not em-
bodied in the writing do not form part of the contract.
(2) If the merger clause is not individually negotiated it will only establish a
presumption that the parties intended that their prior statements,
undertakings or agreements were not to form part of the contract. This
rule may not be excluded or restricted.
(3) The parties’ prior statements may be used to interpret the contract. This
rule may not be excluded or restricted except by an individually
negotiated clause.
(4) A party may by its statements or conduct be precluded from asserting a
merger clause to the extent that the other party has reasonably relied on
them.
Article 2:106: Written Modification Only

(1) A clause in a written contract requiring any modification or ending by
agreement to be made in writing establishes only a presumption that an
agreement to modify or end the contract is not intended to be legally
binding unless it is in writing.
(2) A party may by its statements or conduct be precluded from asserting such
a clause to the extent that the other party has reasonably relied on them.
Article 2:107: Promises Binding without Acceptance

A promise which is intended to be legally binding without acceptance is
binding.
Section 2 : Offer and Acceptance

Article 2:201: Offer
(1) A proposal amounts to an offer if:
(a) it is intended to result in a contract if the other party accepts it, and
(b) it contains sufficiently definite terms to form a contract.
(2) An offer may be made to one or more specific persons or to the public.
(3) A proposal to supply goods or services at stated prices made by a profes-
sional supplier in a public advertisement or a catalogue, or by a display of
goods, is presumed to be an offer to sell or supply at that price until the
stock of goods, or the supplier’s capacity to supply the service, is exhausted.
Article 2:202: Revocation of an Offer

(1) An offer may be revoked if the revocation reaches the offeree before it
has dispatched its acceptance or, in cases of acceptance by conduct,
before the contract has been concluded under Article 2:205(2) or (3).
(2) An offer made to the public can be revoked by the same means as were
used to make the offer.
(3) However, a revocation of an offer is ineffective if:
(a) the offer indicates that it is irrevocable; or
(b) it states a fixed time for its acceptance; or
(c) it was reasonable for the offeree to rely on the offer as being
irrevocable and the offeree has acted in reliance on the offer.
Article 2:203: Rejection

When a rejection of an offer reaches the offeror, the offer lapses.
Article 2:204: Acceptance

(1) Any form of statement or conduct by the offeree is an acceptance if it
indicates assent to the offer.
(2) Silence or inactivity does not in itself amount to acceptance.
Article 2:205: Time of Conclusion of the Contract

(1) If an acceptance has been dispatched by the offeree the contract is
concluded when the acceptance reaches the offeror.
(2) In case of acceptance by conduct, the contract is concluded when notice
of the conduct reaches the offeror.
(3) If by virtue of the offer, of practices which the parties have established
between themselves, or of a usage, the offeree may accept the offer by
performing an act without notice to the offeror, the contract is concluded
when the performance of the act begins.
Article 2:206: Time Limit for Acceptance

(1) In order to be effective, acceptance of an offer must reach the offeror
within the time fixed by it.
(2) If no time has been fixed by the offeror acceptance must reach it within
a reasonable time.
(3) In the case of an acceptance by an act of performance under Article
2:205 (3), that act must be performed within the time for acceptance
fixed by the offeror or, if no such time is fixed, within a reasonable time.
Article 2:207: Late Acceptance

(1) A late acceptance is nonetheless effective as an acceptance if without
delay the offeror informs the offeree that he treats it as such.
(2) If a letter or other writing containing a late acceptance shows that it has
been sent in such circumstances that if its transmission had been normal
it would have reached the offeror in due time, the late acceptance is
effective as an acceptance unless, without delay, the offeror informs the
offeree that it considers its offer as having lapsed.
Article 2:208: Modified Acceptance

(1) A reply by the offeree which states or implies additional or different
terms which would materially alter the terms of the offer is a rejection
and a new offer.
(2) A reply which gives a definite assent to an offer operates as an acceptance
even if it states or implies additional or different terms, provided these
do not materially alter the terms of the offer. The additional or different
terms then become part of the contract.
(3) However, such a reply will be treated as a rejection of the offer if:
(a) the offer expressly limits acceptance to the terms of the offer; or
(b) the offeror objects to the additional or different terms without delay;
or
(c) the offeree makes its acceptance conditional upon the offeror”s
assent to the additional or different terms, and the assent does not
reach the offeree within a reasonable time.
Article 2:209: Conflicting General Conditions

(1) If the parties have reached agreement except that the offer and accep-
tance refer to conflicting general conditions of contract, a contract is
nonetheless formed. The general conditions form part of the contract to
the extent that they are common in substance.
(2) However, no contract is formed if one party:
(a) has indicated in advance, explicitly, and not by way of general
conditions, that it does not intend to be bound by a contract on the
basis of paragraph (1); or
(b) without delay, informs the other party that it does not intend to be
bound by such contract.
(3) General conditions of contract are terms which have been formulated in
advance for an indefinite number of contracts of a certain nature, and
which have not been individually negotiated between the parties.
Article 2:210: Professional’s Written Confirmation

If professionals have concluded a contract but have not embodied it in a final
document, and one without delay sends the other a writing which purports to
be a confirmation of the contract but which contains additional or different

terms, such terms will become part of the contract unless:
(a) the terms materially alter the terms of the contract, or
(b) the addressee objects to them without delay.
Article 2:211: Contracts not Concluded through Offer and Acceptance

The rules in this section apply with appropriate adaptations even though the
process of conclusion of a contract cannot be analysed into offer and
acceptance.
Section 3: Liability for negotiations

Article 2:301: Negotiations Contrary to Good Faith
(1) A party is free to negotiate and is not liable for failure to reach an agreement.
(2) However, a party who has negotiated or broken off negotiations contrary
to good faith and fair dealing is liable for the losses caused to the other
party.
(3) It is contrary to good faith and fair dealing, in particular, for a party to
enter into or continue negotiations with no real intention of reaching an
agreement with the other party.
Article 2:302: Breach of Confidentiality

If confidential information is given by one party in the course of negotiations,
the other party is under a duty not to disclose that information or use it for its
own purposes whether or not a contract is subsequently concluded. The
remedy for breach of this duty may include compensation for loss suffered
and restitution of the benefit received by the other party.
CHAPTER 3: AUTHORITY OF AGENTS
Section 1 : General Provisions

Article 3:101 : Scope of the Chapter
(1) This Chapter governs the authority of an agent or other intermediary to
bind its principal in relation to a contract with a third party.
(2) This Chapter does not govern an agent’s authority bestowed by law or the
authority of an agent appointed by a public or judicial authority.
(3) This Chapter does not govern the internal relationship between the
agent or intermediary and its principal.
Article 3:102: Categories of Representation

(1) Where an agent acts in the name of a principal, the rules on direct
representation apply (Section 2). It is irrelevant whether the principal’s
identity is revealed at the time the agent acts or is to be revealed later.
(2) Where an intermediary acts on instructions and on behalf of, but not in
the name of, a principal, or where the third party neither knows nor has
reason to know that the intermediary acts as an agent, the rules on
indirect representation apply (Section 3).
Section 2 : Direct Representation

Article 3:201: Express, Implied and Apparent Authority
(1) The principal’s grant of authority to an agent to act in its name may be
express or may be implied from the circumstances.
(2) The agent has authority to perform all acts necessary in the circum-
stances to achieve the purposes for which the authority was granted.
(3) A person is to be treated as having granted authority to an apparent agent
if the person’s statements or conduct induce the third party reasonably
and in good faith to believe that the apparent agent has been granted
authority for the act performed by it.
Article 3:202: Agent acting in Exercise of its Authority

Where an agent is acting within its authority as defined by Article 3.201, its
acts bind the principal and the third party directly to each other. The agent
itself is not bound to the third party.
Article 3:203: Unidentified Principal

If an agent enters into a contract in the name of a principal whose identity is
to be revealed later, but fails to reveal that identity within a reasonable time
after a request by the third party, the agent itself is bound by the contract.
Article 3:204: Agent acting without or outside its Authority

(1) Where a person acting as an agent acts without authority or outside the
scope of its authority, its acts are not binding upon the principal and the
third party.
(2) Failing ratification by the principal according to Article 3:207, the agent
is liable to pay the third party such damages as will place the third party
in the same position as if the agent had acted with authority. This does
not apply if the third party knew or could not have been unaware of the
agent’s lack of authority.
Article 3:205: Conflict of Interest

(1) If a contract concluded by an agent involves the agent in a conflict of
interest of which the third party knew or could not have been unaware,
the principal may avoid the contract according to the provisions of
Articles 4:112 to 4:116.
(2) There is presumed to be a conflict of interest where:
(a) the agent also acted as agent for the third party; or
(b) the contract was with itself in its personal capacity.
(3) However, the principal may not avoid the contract:
(a) if it had consented to, or could not have been unaware of, the agent’s
so acting; or
(b) if the agent had disclosed the conflict of interest to it and it had not
objected within a reasonable time.
Article 3:206: Subagency

An agent has implied authority to appoint a subagent to carry out tasks which
are not of a personal character and which it is not reasonable to expect the
agent to carry out itself. The rules of this Section apply to the subagency; acts
of the subagent which are within its and the agent’s authority bind the
principal and the third party directly to each other.
Article 3:207: Ratification by Principal

(1) Where a person acting as an agent acts without authority or outside its
authority, the principal may ratify the agent’s acts.
(2) Upon ratification, the agent’s acts are considered as having been author-
ised, without prejudice to the rights of other persons.
Article 3:208: Third Party’s Right with Respect to Confirmation of

Authority
Where the statements or conduct of the principal gave the third party reason
to believe that an act performed by the agent was authorised, but the third
party is in doubt about the authorisation, it may send a written confirmation
to the principal or request ratification from it. If the principal does not object
or answer the request without delay, the agent’s act is treated as having been
authorised.
Article 3:209: Duration of Authority

(1) An agent’s authority continues until the third party knows or ought to
know that:
(a) the agent’s authority has been brought to an end by the principal, the
agent, or both; or
(b) the acts for which the authority had been granted have been com-
pleted, or the time for which it had been granted has expired; or
(c) the agent has become insolvent or, where a natural person, has died
or become incapacitated; or
(d) the principal has become insolvent.
(2) The third party is considered to know that the agent’s authority has been
brought to an end under paragraph(1) (a) above if this has been com-
municated or publicised in the same manner in which the authority was
originally communicated or publicised.
(3) However, the agent remains authorised for a reasonable time to perform
those acts which are necessary to protect the interests of the principal or
its successors.
Section 3: Indirect Representation

Article 3.301: Intermediaries not acting in the name of a Principal
(1) Where an intermediary acts:
(a) on instructions and on behalf, but not in the name, of a principal, or
(b) on instructions from a principal but the third party does not know
and has no reason to know this,
the intermediary and the third party are bound to each other.
(2) The principal and the third party are bound to each other only under the
conditions set out in Articles 3:302 to 3:304.
Article 3:302: Intermediary’s Insolvency or Fundamental Non-

performance to Principal
If the intermediary becomes insolvent, or if it commits a fundamental non-
performance towards the principal, or if prior to the time for performance it
is clear that there will be a fundamental non-performance:
(a) on the principal’s demand, the intermediary shall communicate the
name and address of the third party to the principal; and
(b) the principal may exercise against the third party the rights acquired on
the principal’s behalf by the intermediary, subject to any defences which
the third party may set up against the intermediary.
Article 3:303: Intermediary’s Insolvency or Fundamental Non-

performance to Third Party
If the intermediary becomes insolvent, or if it commits a fundamental non-
performance towards the third party, or if prior to the time for performance
it is clear that there will be a fundamental non-performance:
(a) on the third party’s demand, the intermediary shall communicate the
name and address of the principal to the third party; and
(b) the third party may exercise against the principal the rights which the
third party has against the intermediary, subject to any defences which
the intermediary may set up against the third party and those which the
principal may set up against the intermediary.
Article 3:304: Requirement of Notice

The rights under Articles 3:302 and 3:303 may be exercised only if notice of
intention to exercise them is given to the intermediary and to the third party
or principal, respectively. Upon receipt of the notice, the third party or the
principal is no longer entitled to render performance to the intermediary.
CHAPTER 4: VALIDITY
Article 4:101: Matters not Covered
This chapter does not deal with invalidity arising from illegality, immorality or
lack of capacity.
Article 4:102: Initial Impossibility

A contract is not invalid merely because at the time it was concluded
performance of the obligation assumed was impossible, or because a party
was not entitled to dispose of the assets to which the contract relates.
Article 4:103: Fundamental Mistake as to Facts or Law

(1) A party may avoid a contract for mistake of fact or law existing when the
contract was concluded if:
(a) (i) the mistake was caused by information given by the other party; or
(ii) the other party knew or ought to have known of the mistake and
it was contrary to good faith and fair dealing to leave the mistaken
party in error; or
(iii) the other party made the same mistake,
and
(b) the other party knew or ought to have known that the mistaken party,
had it known the truth, would not have entered the contract or
would have done so only on fundamentally different terms.
(2) However a party may not avoid the contract if:
(a) in the circumstances its mistake was inexcusable, or

(b) the risk of the mistake was assumed, or in the circumstances should
be borne, by it.
Article 4:104: Inaccuracy in Communication

An inaccuracy in the expression or transmission of a statement is to be treated
as a mistake of the person who made or sent the statement and Article 4:103
applies.
Article 4:105: Adaptation of Contract

(1) If a party is entitled to avoid the contract for mistake but the other party
indicates that it is willing to perform, or actually does perform, the
contract as it was understood by the party entitled to avoid it, the contract
is to be treated as if it had been concluded as the that party understood it.
The other party must indicate its willingness to perform, or render such
performance, promptly after being informed of the manner in which the
party entitled to avoid it understood the contract and before that party
acts in reliance on any notice of avoidance.
(2) After such indication or performance the right to avoid is lost and any
earlier notice of avoidance is ineffective.
(3) Where both parties have made the same mistake, the court may at the
request of either party bring the contract into accordance with what
might reasonably have been agreed had the mistake not occurred.
Article 4:106: Incorrect Information

A party who has concluded a contract relying on incorrect information given
it by the other party may recover damages in accordance with Article
4:117(2)and (3) even if the information does not give rise to a fundamental
mistake under Article 4:103, unless the party who gave the information had
reason to believe that the information was correct.
Article 4:107: Fraud

(1) A party may avoid a contract when it has been led to conclude it by the
other party’s fraudulent representation, whether by words or conduct, or
fraudulent non-disclosure of any information which in accordance with
good faith and fair dealing it should have disclosed.
(2) A party’s representation or non-disclosure is fraudulent if it was intended
to deceive.
(3) In determining whether good faith and fair dealing required that a party
disclose particular information, regard should be had to all the circum-

stances, including:
(a) whether the party had special expertise;
(b) the cost to it of acquiring the relevant information;
(c) whether the other party could reasonably acquire the information
for itself; and
(d) the apparent importance of the information to the other party.
Article 4:108: Threats

A party may avoid a contract when it has been led to conclude it by the other
party’s imminent and serious threat of an act:
(a) which is wrongful in itself, or
(b) which it is wrongful to use as a means to obtain the conclusion of the
contract,
unless in the circumstances the first party had a reasonable alternative.
Article 4:109: Excessive Benefit or Unfair Advantage

(1) A party may avoid a contract if, at the time of the conclusion of the contract:
(a) it was dependent on or had a relationship of trust with the other party,
was in economic distress or had urgent needs, was improvident,
ignorant, inexperienced or lacking in bargaining skill, and
(b) the other party knew or ought to have known of this and, given the
circumstances and purpose of the contract, took advantage of the
first party’s situation in a way which was grossly unfair or took an
excessive benefit.
(2) Upon the request of the party entitled to avoidance, a court may if it is
appropriate adapt the contract in order to bring it into accordance with
what might have been agreed had the requirements of good faith and fair
dealing been followed.
(3) A court may similarly adapt the contract upon the request of a party
receiving notice of avoidance for excessive benefit or unfair advantage,
provided that this party informs the party who gave the notice promptly
after receiving it and before that party has acted in reliance on it.
Article 4:110: Unfair Terms not Individually Negotiated

(1) A party may avoid a term which has not been individually negotiated if,
contrary to the requirements of good faith and fair dealing, it causes a
significant imbalance in the parties’ rights and obligations arising under
the contract to the detriment of that party, taking into account the nature
of the performance to be rendered under the contract, all the other

terms of the contract and the circumstances at the time the contract was
concluded.
(2) This Article does not apply to:
(a) a term which defines the main subject matter of the contract,
provided the term is in plain and intelligible language; or to
(b) the adequacy in value of one party’s obligations compared to the
value of the obligations of the other party.
Article 4:111: Third Persons

Where a third person for whose acts a party is responsible, or who with a
party’s assent is involved in the making of a contract:
(1) (a) causes a mistake by giving information, or knows of or ought to have
known of a mistake,
(b) gives incorrect information,
(c) commits fraud,
(d) makes a threat, or
(e) takes excessive benefit or unfair advantage,
remedies under this Chapter will be available under the same conditions
as if the behaviour or knowledge had been that of the party itself.
(2) Where any other third person:
(a) gives incorrect information,
(b) commits fraud,
(c) makes a threat, or
(d) takes excessive benefit or unfair advantage,
remedies under this Chapter will be available if the party knew or ought
to have known of the relevant facts, or at the time of avoidance it has not
acted in reliance on the contract.
Article 4:112: Notice of Avoidance

Avoidance must be by notice to the other party.
Article 4:113: Time Limits

(1) Notice of avoidance must be given within a reasonable time, with due
regard to the circumstances, after the avoiding party knew or ought to
have known of the relevant facts or became capable of acting freely.
(2) However, a party may avoid an individual term under Article 4:110 if it
gives notice of avoidance within a reasonable time after the other party
has invoked the term.
Article 4:114: Confirmation

If the party who is entitled to avoid a contract confirms it, expressly or
impliedly, after it knows of the ground for avoidance, or becomes capable of
acting freely, avoidance of the contract is excluded.
Article 4:115: Effect of Avoidance

On avoidance either party may claim restitution of whatever it has supplied
under the contract, provided it makes concurrent restitution of whatever it
has received. If restitution cannot be made in kind for any reason, a reason-
able sum must be paid for what has been received.
Article 4:116: Partial Avoidance

If a ground of avoidance affects only particular terms of a contract, the effect
of an avoidance is limited to those terms unless, giving due consideration to
all the circumstances of the case, it is unreasonable to uphold the remaining
contract.
Article 4:117: Damages

(1) A party who avoids a contract under this Chapter may recover from the
other party damages so as to put the avoiding party as nearly as possible
into the same position as if it had not concluded the contract, provided
that the other party knew or ought to have known of the mistake, fraud,
threat or taking of excessive benefit or unfair advantage.
(2) If a party has the right to avoid a contract under this Chapter, but does
not exercise its right or has lost its right under the provisions of Articles
4:113 or 4:114, it may recover, subject to paragraph (1), damages limited
to the loss caused to it by the mistake, fraud, threat or taking of excessive
benefit or unfair advantage. The same measure of damages shall apply when
the party was misled by incorrect information in the sense of Article 4:106.
(3) In other respects, the damages shall be in accordance with the relevant
provisions of Chapter 9, Section 5, with appropriate adaptations.
Article 4:118: Exclusion or Restriction of Remedies

(1) Remedies for fraud, threats and excessive benefit or unfair advantage-
taking, and the right to avoid an unfair term which has not been
individually negotiated, cannot be excluded or restricted.
(2) Remedies for mistake and incorrect information may be excluded or
restricted unless the exclusion or restriction is contrary to good faith and
fair dealing..
Article 4:119: Remedies for Non-performance

A party who is entitled to a remedy under this Chapter in circumstances
which afford that party a remedy for non-performance may pursue either
remedy.
CHAPTER 5: INTERPRETATION
Article 5:101: General Rules of Interpretation
(1) A contract is to be interpreted according to the common intention of the
parties even if this differs from the literal meaning of the words.
(2) If it is established that one party intended the contract to have a
particular meaning, and at the time of the conclusion of the contract the
other party could not have been unaware of the first party’s intention, the
contract is to be interpreted in the way intended by the first party.
(3) If an intention cannot be established according to (1) or (2), the contract
is to be interpreted according to the meaning that reasonable persons of
the same kind as the parties would give to it in the same circumstances.
Article 5:102: Relevant Circumstances

In interpreting the contract, regard shall be had, in particular, to:
(a) the circumstances in which it was concluded, including the preliminary
negotiations;
(b) the conduct of the parties, even subsequent to the conclusion of the
contract;
(c) the nature and purpose of the contract;
(d) the interpretation which has already been given to similar clauses by the
parties and the practices they have established between themselves;
(e) the meaning commonly given to terms and expressions in the branch of
activity concerned and the interpretation similar clauses may already
have received ;
(f) usages; and
(g) good faith and fair dealing.
Article 5.103: Contra Proferentem Rule

Where there is doubt about the meaning of a contract term not individually
negotiated, an interpretation of the term against the party who supplied it is
to be preferred.
Article 5:104: Preference to Negotiated Terms

Terms which have been individually negotiated take preference over those
which are not.
Article 5:105: Reference to Contract as a Whole

Terms are to be interpreted in the light of the whole contract in which they
appear.
Article 5:106: Terms to Be Given Effect

An interpretation which renders the terms of the contract lawful, or effective,
is to be preferred to one which would not.
Article 5:107: Linguistic Discrepancies

Where a contract is drawn up in two or more language versions none of which
is stated to be authoritative, there is, in case of discrepancy between the
versions, a preference for the interpretation according to the version in which
the contract was originally drawn up.
CHAPTER 6: CONTENTS AND EFFECTS

Article 6:101: Statements giving rise to Contractual Obligations
(1) A statement made by one party before or when the contract is concluded
is to be treated as giving rise to a contractual obligation if that is how the
other party reasonably understood it in the circumstances, taking into
account:
(a) the apparent importance of the statement to the other party;
(b) whether the party was making the statement in the course of business;
and
(c) the relative expertise of the parties.
(2) If one of the parties is a professional supplier who gives information
about the quality or use of services or goods or other property when
marketing or advertising them or otherwise before the contract for them
is concluded, the statement is to be treated as giving rise to a contractual
obligation unless it is shown that the other party knew or could not have
been unaware that the statement was incorrect.
(3) Such information and other undertakings given by a person advertising
or marketing services, goods or other property for the professional
supplier, or by a person in earlier links of the business chain, are to be
treated as giving rise to a contractual obligation on the part of the
professional supplier unless it did not know and had no reason to know of
the information or undertaking.
Article 6:102: Implied Terms

In addition to the express terms, a contract may contain implied terms which
stem from
(a) the intention of the parties,
(b) the nature and purpose of the contract, and
(c) good faith and fair dealing.
Article 6:103: Simulation

When the parties have concluded an apparent contract which was not intended
to reflect their true agreement, as between the parties the true agreement
prevails.
Article 6:104: Determination of Price

Where the contract does not fix the price or the method of determining it, the
parties are to be treated as having agreed on a reasonable price.
Article 6:105: Unilateral Determination by a Party

Where the price or any other contractual term is to be determined by one
party whose determination is grossly unreasonable, then notwithstanding any
provision to the contrary, a reasonable price or other term shall be substituted.
Article 6:106: Determination by a Third Person

(1) Where the price or any other contractual term is to be determined by a
third person, and it cannot or will not do so, the parties are presumed to
have empowered the court to appoint another person to determine it.
(2) If a price or other term fixed by a third person is grossly unreasonable, a
reasonable price or term shall be substituted.
Article 6:107: Reference to a Non Existent Factor

Where the price or any other contractual term is to be determined by
reference to a factor which does not exist or has ceased to exist or to be
accessible, the nearest equivalent factor shall be substituted.
Article 6:108: Quality of Performance

If the contract does not specify the quality, a party must tender performance
of at least average quality.
Article 6:109: Contract for an Indefinite Period

A contract for an indefinite period may be ended by either party by giving
notice of reasonable length.
Article 6:110: Stipulation in Favour of a Third Party

(1) A third party may require performance of a contractual obligation when
its right to do so has been expressly agreed upon between the promisor
and the promisee, or when such agreement is to be inferred from the
purpose of the contract or the circumstances of the case. The third party
need not be identified at the time the agreement is concluded.
(2) If the third party renounces the right to performance the right is treated
as never having accrued to it.
(3) The promisee may by notice to the promisor deprive the third party of
the right to performance unless:
(a) the third party has received notice from the promisee that the right
has been made irrevocable, or
(b) the promisor or the promisee has received notice from the third
party that the latter accepts the right.
Article 6:111: Change of Circumstances

(1) A party is bound to fulfil its obligations even if performance has become
more onerous, whether because the cost of performance has increased
or because the value of the performance it receives has diminished.
(2) If, however, performance of the contract becomes excessively onerous
because of a change of circumstances, the parties are bound to enter into
negotiations with a view to adapting the contract or terminating it,
provided that:
(a) the change of circumstances occurred after the time of conclusion of
the contract,
(b) the possibility of a change of circumstances was not one which could
reasonably have been taken into account at the time of conclusion of
the contract, and
(c) the risk of the change of circumstances is not one which, according
to the contract, the party affected should be required to bear.
(3) If the parties fail to reach agreement within a reasonable period, the
court may:
(a) end the contract at a date and on terms to be determined by the
court ; or
(b) adapt the contract in order to distribute between the parties in a just
and equitable manner the losses and gains resulting from the change
of circumstances.
In either case, the court may award damages for the loss suffered through
a party refusing to negotiate or breaking off negotiations contrary to good
faith and fair dealing.
CHAPTER 7: PERFORMANCE
Article 7:101: Place of Performance
(1) If the place of performance of a contractual obligation is not fixed by or
determinable from the contract it shall be:
(a) in the case of an obligation to pay money, the creditor’s place of
business at the time of the conclusion of the contract;
(b) in the case of an obligation other than to pay money, the debtor’s
place of business at the time of conclusion of the contract.
(2) If a party has more than one place of business, the place of business for
the purpose of the preceding paragraph is that which has the closest
relationship to the contract, having regard to the circumstances known to
or contemplated by the parties at the time of conclusion of the contract.
(3) If a party does not have a place of business its habitual residence is to be
treated as its place of business.
Article 7:102: Time of Performance

A party has to effect its performance:
(1) if a time is fixed by or determinable from the contract, at that time;
(2) if a period of time is fixed by or determinable from the contract, at any
time within that period unless the circumstances of the case indicate that
the other party is to choose the time;
(3) in any other case, within a reasonable time after the conclusion of the
contract.
Article 7:103: Early Performance

(1) A party may decline a tender of performance made before it is due except
where acceptance of the tender would not unreasonably prejudice its
interests.
(2) A party’s acceptance of early performance does not affect the time fixed
for the performance of its own obligation.
Article 7:104: Order of Performance

To the extent that the performances of the parties can be rendered
simultaneously, the parties are bound to render them simultaneously unless
the circumstances indicate otherwise.
Article 7:105: Alternative Performance

(1) Where an obligation may be discharged by one of alternative perform-
ances, the choice belongs to the party who is to perform, unless the
circumstances indicate otherwise.
(2) If the party who is to make the choice fails to do so by the time required
by the contract, then:
(a) if the delay in choosing is fundamental, the right to choose passes to
the other party;
(b) if the delay is not fundamental, the other party may give a notice
fixing an additional period of reasonable length in which the party to
choose must do so. If the latter fails to do so, the right to choose
passes to the other party.
Article 7:106: Performance by a Third Person

(1) Except where the contract requires personal performance the creditor
cannot refuse performance by a third person if:
(a) the third person acts with the assent of the debtor; or
(b) the third person has a legitimate interest in performance and the
debtor has failed to perform or it is clear that it will not perform at
the time performance is due.
(2) Performance by the third person in accordance with paragraph (1) dis-
charges the debtor.
Article 7:107: Form of Payment

(1) Payment of money due may be made in any form used in the ordinary
course of business.
(2) A creditor who, pursuant to the contract or voluntarily, accepts a cheque
or other order to pay or a promise to pay is presumed to do so only on
condition that it will be honoured. The creditor may not enforce the
original obligation to pay unless the order or promise is not honoured.
Article 7:108: Currency of Payment

(1) The parties may agree that payment shall be made only in a specified
currency.
(2) In the absence of such agreement, a sum of money expressed in a cur-

rency other than that of the place where payment is due may be paid in
the currency of that place according to the rate of exchange prevailing
there at the time when payment is due.
(3) If, in a case falling within the preceding paragraph, the debtor has not
paid at the time when payment is due, the creditor may require payment
in the currency of the place where payment is due according to the rate
of exchange prevailing there either at the time when payment is due or at
the time of actual payment.
Article 7:109: Appropriation of Performance

(1) Where a party has to perform several obligations of the same nature and
the performance tendered does not suffice to discharge all of the obliga-
tions, then subject to paragraph 4 the party may at the time of its perform-
ance declare to which obligation the performance is to be appropriated.
(2) If the performing party does not make such a declaration, the other party
may within a reasonable time appropriate the performance to such
obligation as it chooses. It shall inform the performing party of the
choice. However, any such appropriation to an obligation which:
(a) is not yet due, or
(b) is illegal, or
(c) is disputed,
is invalid.
(3) In the absence of an appropriation by either party, and subject to
paragraph 4, the performance is appropriated to that obligation which
satisfies one of the following criteria in the sequence indicated:
(a) the obligation which is due or is the first to fall due;
(b) the obligation for which the creditor has the least security;
(c) the obligation which is the most burdensome for the debtor
(d) the obligation which has arisen first.
If none of the preceding criteria applies, the performance is appro-
priated proportionately to all obligations.
(4) In the case of a monetary obligation, a payment by the debtor is to be
appropriated, first, to expenses, secondly, to interest, and thirdly, to
principal, unless the creditor makes a different appropriation.
Article 7:110: Property Not Accepted

(1) A party who is left in possession of tangible property other than money
because of the other party’s failure to accept or retake the property must
take reasonable steps to protect and preserve the property.

(2) The party left in possession may discharge its duty to deliver or return:
(a) by depositing the property on reasonable terms with a third person
to be held to the order of the other party, and notifying the other
party of this; or
(b) by selling the property on reasonable terms after notice to the other
party, and paying the net proceeds to that party.
(3) Where, however, the property is liable to rapid deterioration or its
preservation is unreasonably expensive, the party must take reasonable
steps to dispose of it. It may discharge its duty to deliver or return by
paying the net proceeds to the other party.
(4) The party left in possession is entitled to be reimbursed or to retain out of
the proceeds of sale any expenses reasonably incurred.
Article 7:111: Money not Accepted

Where a party fails to accept money properly tendered by the other party,
that party may after notice to the first party discharge its obligation to pay by
depositing the money to the order of the first party in accordance with the
law of the place where payment is due.
Article 7:112: Costs of Performance

Each party shall bear the costs of performance of its obligations.
CHAPTER 8: NON-PERFORMANCE AND REMEDIES

IN GENERAL
Article 8:101: Remedies Available

(1) Whenever a party does not perform an obligation under the contract and
the non-performance is not excused under Article 8:108, the aggrieved
party may resort to any of the remedies set out in Chapter 9.
(2) Where a party’s non-performance is excused under Article 8:108, the
aggrieved party may resort to any of the remedies set out in Chapter 9
except claiming performance and damages.
(3) A party may not resort to any of the remedies set out in Chapter 9 to the
extent that its own act caused the other party’s non-performance.
Article 8:102: Cumulation of Remedies

Remedies which are not incompatible may be cumulated. In particular, a party
is not deprived of its right to damages by exercising its right to any other remedy.
Article 8:103: Fundamental Non-Performance

A non-performance of an obligation is fundamental to the contract if:
(a) strict compliance with the obligation is of the essence of the contract; or
(b) the non-performance substantially deprives the aggrieved party of what
it was entitled to expect under the contract, unless the other party did not
foresee and could not reasonably have foreseen that result; or
(c) the non-performance is intentional and gives the aggrieved party reason
to believe that it cannot rely on the other party’s future performance.
Article 8:104: Cure by Non-Performing Party

A party whose tender of performance is not accepted by the other party
because it does not conform to the contract may make a new and conforming
tender where the time for performance has not yet arrived or the delay would
not be such as to constitute a fundamental non-performance.
Article 8:105: Assurance of Performance

(1) A party who reasonably believes that there will be a fundamental non-
performance by the other party may demand adequate assurance of due
performance and meanwhile may withhold performance of its own
obligations so long as such reasonable belief continues.
(2) Where this assurance is not provided within a reasonable time, the party
demanding it may terminate the contract if it still reasonably believes
that there will be a fundamental non-performance by the other party and
gives notice of termination without delay.
Article 8:106: Notice Fixing Additional Period for Performance

(1) In any case of non-performance the aggrieved party may by notice to the
other party allow an additional period of time for performance.
(2) During the additional period the aggrieved party may withhold perform-
ance of its own reciprocal obligations and may claim damages, but it may
not resort to any other remedy. If it receives notice from the other party
that the latter will not perform within that period, or if upon expiry of
that period due performance has not been made, the aggrieved party
may resort to any of the remedies that may be available under chapter 9.
(3) If in a case of delay in performance which is not fundamental the
aggrieved party has given a notice fixing an additional period of time of
reasonable length, it may terminate the contract at the end of the period
of notice. The aggrieved party may in its notice provide that if the other
party does not perform within the period fixed by the notice the contract
shall terminate automatically. If the period stated is too short, the aggrieved
party may terminate, or, as the case may be, the contract shall terminate
automatically, only after a reasonable period from the time of the notice.
Article 8:107 Performance Entrusted to Another

A party who entrusts performance of the contract to another person remains
responsible for performance.
Article 8:108: Excuse Due to an Impediment

(1) A party’s non-performance is excused if it proves that it is due to an
impediment beyond its control and that it could not reasonably have
been expected to take the impediment into account at the time of the
conclusion of the contract, or to have avoided or overcome the impedi-
ment or its consequences.
(2) Where the impediment is only temporary the excuse provided by this
Article has effect for the period during which the impediment exists.
However, if the delay amounts to a fundamental non-performance, the
creditor may treat it as such.
(3) The non-performing party must ensure that notice of the impediment
and of its effect on its ability to perform is received by the other party
within a reasonable time after the non-performing party knew or ought
to have known of these circumstances. The other party is entitled to
damages for any loss resulting from the non-receipt of such notice.
Article 8:109: Clause Excluding or Restricting Remedies

Remedies for non-performance may be excluded or restricted unless it would
be contrary to good faith and fair dealing to invoke the exclusion or restriction.
CHAPTER 9: PARTICULAR REMEDIES FOR

NON-PERFORMANCE
Section 1 : Right to Performance

Article 9:101: Monetary Obligations
(1) The creditor is entitled to recover money which is due.
(2) Where the creditor has not yet performed its obligation and it is clear
that the debtor will be unwilling to receive performance, the creditor
may nonetheless proceed with its performance and may recover any sum
due under the contract unless:
(a) it could have made a reasonable substitute transaction without

significant effort or expense; or
(b) performance would be unreasonable in the circumstances.
Article 9:102: Non-monetary Obligations

(1) The aggrieved party is entitled to specific performance of an obligation
other than one to pay money, including the remedying of a defective
performance.
(2) Specific performance cannot, however, be obtained where:
(a) performance would be unlawful or impossible; or
(b) performance would cause the debtor unreasonable effort or
expense; or
(c) the performance consists in the provision of services or work of a
personal character or depends upon a personal relationship, or
(d) the aggrieved party may reasonably obtain performance from another
source.
(3) The aggrieved party will lose the right to specific performance if it fails to
seek it within a reasonable time after it has or ought to have become
aware of the non-performance.
Article 9:103: Damages Not Precluded

The fact that a right to performance is excluded under this Section does not
preclude a claim for damages.
Section 2 : Withholding Performance

Article 9:201: Right to Withhold Performance
(1) A party who is to perform simultaneously with or after the other party
may withhold performance until the other has tendered performance or
has performed. The first party may withhold the whole of its
performance or a part of it as may be reasonable in the circumstances.
(2) A party may similarly withhold performance for as long as it is clear that
there will be a non-performance by the other party when the other
party’s performance becomes due.
Section 3 : Termination of the Contract

Article 9:301: Right to Terminate the Contract
(1) A party may terminate the contract if the other party’s non-performance
is fundamental.
(2) In the case of delay the aggrieved party may also terminate the contract
under Article 8:106 (3).
Article 9:302: Contract to be Performed in Parts

If the contract is to be performed in separate parts and in relation to a part to
which a counter-performance can be apportioned, there is a fundamental
non-performance, the aggrieved party may exercise its right to terminate
under this Section in relation to the part concerned. It may terminate the
contract as a whole only if the non-performance is fundamental to the
contract as a whole.
Article 9:303: Notice of Termination

(1) A party’s right to terminate the contract is to be exercised by notice to the
other party.
(2) The aggrieved party loses its right to terminate the contract unless it
gives notice within a reasonable time after it has or ought to have become
aware of the non-performance.
(3) (a) When performance has not been tendered by the time it was due,
the aggrieved party need not give notice of termination before a
tender has been made. If a tender is later made it loses its right to
terminate if it does not give such notice within a reasonable time
after it has or ought to have become aware of the tender.
(b) If, however, the aggrieved party knows or has reason to know that the
other party still intends to tender within a reasonable time, and the
aggrieved party unreasonably fails to notify the other party that it will
not accept performance, it loses its right to terminate if the other
party in fact tenders within a reasonable time.
(4) If a party is excused under Article 8:108 through an impediment which is
total and permanent, the contract is terminated automatically and
without notice at the time the impediment arises.
Article 9:304: Anticipatory Non-Performance

Where prior to the time for performance by a party it is clear that there will
be a fundamental non-performance by it the other party may terminate the
contract.
Article 9:305: Effects of Termination in General

(1) Termination of the contract releases both parties from their obligation to
effect and to receive future performance, but, subject to Articles 9:306 to
9:308, does not affect the rights and liabilities that have accrued up to the
time of termination.
(2) Termination does not affect any provision of the contract for the
settlement of disputes or any other provision which is to operate even
after termination.
Article 9:306: Property Reduced in Value

A party who terminates the contract may reject property previously received
from the other party if its value to the first party has been fundamentally
reduced as a result of the other party’s non-performance.
Article 9:307: Recovery of Money Paid

On termination of the contract a party may recover money paid for a
performance which it did not receive or which it properly rejected.
Article 9:308: Recovery of Property

On termination of the contract a party who has supplied property which can
be returned and for which it has not received payment or other counter-
performance may recover the property.
Article 9:309: Recovery for Performance that Cannot be Returned

On termination of the contract a party who has rendered a performance
which cannot be returned and for which it has not received payment or other
counter-performance may recover a reasonable amount for the value of the
performance to the other party.
Section 4 : Price Reduction

Article 9:401: Right to Reduce Price
(1) A party who accepts a tender of performance not conforming to the con-
tract may reduce the price. This reduction shall be proportionate to the
decrease in the value of the performance at the time this was tendered
compared to the value which a conforming tender would have had at that
time.
(2) A party who is entitled to reduce the price under the preceding para-
graph and who has already paid a sum exceeding the reduced price may
recover the excess from the other party.
(3) A party who reduces the price cannot also recover damages for reduction
in the value of the performance but remains entitled to damages for any
further loss it has suffered so far as these are recoverable under Section
5 of this Chapter.
Section 5 : Damages and Interest

Article 9:501: Right to Damages
(1) The aggrieved party is entitled to damages for loss caused by the other
party’s non-performance which is not excused under Article 8:108.
(2) The loss for which damages are recoverable includes:
(a) non-pecuniary loss; and
(b) future loss which is reasonably likely to occur.
Article 9:502: General Measure of Damages

The general measure of damages is such sum as will put the aggrieved party
as nearly as possible into the position in which it would have been if the
contract had been duly performed. Such damages cover the loss which the
aggrieved party has suffered and the gain of which it has been deprived.
Article 9:503: Foreseeability

The non-performing party is liable only for loss which it foresaw or could
reasonably have foreseen at the time of conclusion of the contract as a likely
result of its non-performance, unless the non-performance was intentional or
grossly negligent.
Article 9:504: Loss Attributable to Aggrieved Party

The non-performing party is not liable for loss suffered by the aggrieved party
to the extent that the aggrieved party contributed to the non-performance or
its effects.
Article 9:505: Reduction of Loss

(1) The non-performing party is not liable for loss suffered by the aggrieved
party to the extent that the aggrieved party could have reduced the loss
by taking reasonable steps.
(2) The aggrieved party is entitled to recover any expenses reasonably
incurred in attempting to reduce the loss.
Article 9:506: Substitute Transaction

Where the aggrieved party has terminated the contract and has made a
substitute transaction within a reasonable time and in a reasonable manner, it
may recover the difference between the contract price and the price of the
substitute transaction as well as damages for any further loss so far as these
are recoverable under this Section.
Article 9:507: Current Price

Where the aggrieved party has terminated the contract and has not made a
substitute transaction but there is a current price for the performance
contracted for, it may recover the difference between the contract price and
the price current at the time the contract is terminated as well as damages for
any further loss so far as these are recoverable under this Section.
Article 9:508: Delay in Payment of Money

(1) If payment of a sum of money is delayed, the aggrieved party is entitled
to interest on that sum from the time when payment is due to the time of
payment at the average commercial bank short-term lending rate to
prime borrowers prevailing for the contractual currency of payment at
the place where payment is due.
(2) The aggrieved party may in addition recover damages for any further loss
so far as these are recoverable under this Section.
Article 9:509: Agreed Payment for Non-performance

(1) Where the contract provides that a party who fails to perform is to pay a
specified sum to the aggrieved party for such non-performance, the
aggrieved party shall be awarded that sum irrespective of its actual loss.
(2) However, despite any agreement to the contrary the specified sum may be
reduced to a reasonable amount where it is grossly excessive in relation
to the loss resulting from the non-performance and the other circumstances.
Article 9:510: Currency by which Damages to be Measured

Damages are to be measured by the currency which most appropriately
reflects the aggrieved party’s loss.
CHAPTER 10: PLURALITY OF PARTIES

Section 1: Plurality of debtors
Article 10:101: Solidary, Separate and Communal Obligations
(1) Obligations are solidary when all the debtors are bound to render one
and the same performance and the creditor may require it from any one
of them until full performance has been received.
(2) Obligations are separate when each debtor is bound to render only part
of the performance and the creditor may require from each debtor only
that debtor’s part.
(3) An obligation is communal when all the debtors are bound to render the
performance together and the creditor may require it only from all of
them.
Article 10:102: When Solidary Obligations Arise

(1) If several debtors are bound to render one and the same performance to
a creditor under the same contract, they are solidarily liable, unless the
contract or the law provides otherwise.
(2) Solidary obligations also arise where several persons are liable for the
same damage.
(3) The fact that the debtors are not liable on the same terms does not
prevent their obligations from being solidary.
Article 10:103: Liability under Separate Obligations

Debtors bound by separate obligations are liable in equal shares unless the
contract or the law provides otherwise.
Article 10:104: Communal Obligations: Special Rule when Money

claimed for Non-performance
Notwithstanding Article 10:101(3), when money is claimed for non-perform-
ance of a communal obligation, the debtors are solidarily liable for payment
to the creditor.
Article 10:105: Apportionment between Solidary Debtors

(1) As between themselves, solidary debtors are liable in equal shares unless
the contract or the law provides otherwise.
(2) If two or more debtors are liable for the same damage under Article
10:102(2), their share of liability as between themselves is determined
according to the law governing the event which gave rise to the liability.
Article 10:106: Recourse between Solidary Debtors

(1) A solidary debtor who has performed more than that debtor’s share may
claim the excess from any of the other debtors to the extent of each
debtor’s unperformed share, together with a share of any costs reasonably
incurred.
(2) A solidary debtor to whom paragraph (1) applies may also, subject to
any prior right and interest of the creditor, exercise the rights and actions
of the creditor, including accessory securities, to recover the excess from
any of the other debtors to the extent of each debtor’s unperformed
share.
(3) If a solidary debtor who has performed more than that debtor’s share is
unable, despite all reasonable efforts, to recover contribution from
another solidary debtor, the share of the others, including the one who
has performed, is increased proportionally.
Article 10:107: Performance, Set-off and Merger in Solidary

Obligations
(1) Performance or set-off by a solidary debtor or set-off by the creditor
against one solidary debtor discharges the other debtors in relation to the
creditor to the extent of the performance or set-off.
(2) Merger of debts between a solidary debtor and the creditor discharges
the other debtors only for the share of the debtor concerned.
Article 10:108: Release or Settlement in Solidary Obligations

(1) When the creditor releases, or reaches a settlement with, one solidary
debtor, the other debtors are discharged of liability for the share of that
debtor.
(2) The debtors are totally discharged by the release or settlement if it so
provides.
(3) As between solidary debtors, the debtor who is discharged from that
debtor’s share is discharged only to the extent of the share at the time of
the discharge and not from any supplementary share for which that
debtor may subsequently become liable under Article 10:106(3).
Article 10:109: Effect of Judgment in Solidary Obligations

A decision by a court as to the liability to the creditor of one solidary debtor
does not affect:
(a) the liability to the creditor of the other solidary debtors; or
(b) the rights of recourse between the solidary debtors under Article 10:106.
Article 10:110: Prescription in Solidary Obligations

Prescription of the creditor’s right to performance (“claim”) against one
solidary debtor does not affect:
(a) the liability to the creditor of the other solidary debtors; or
(b) the rights of recourse between the solidary debtors under Article 10:106.
Article 10:111: Opposability of other Defences in Solidary

Obligations
(1) A solidary debtor may invoke against the creditor any defence which
another solidary debtor can invoke, other than a defence personal to that
other debtor. Invoking the defence has no effect with regard to the other
solidary debtors.
(2) A debtor from whom contribution is claimed may invoke against the
claimant any personal defence that that debtor could have invoked
against the creditor.
Section 2 : Plurality of creditors

Article 10:201: Solidary, Separate and Communal Claims
(1) Claims are solidary when any of the creditors may require full perform-
ance from the debtor and when the debtor may render performance to
any of the creditors.
(2) Claims are separate when the debtor owes each creditor only that
creditor’s share of the claim and each creditor may require performance
only of that creditor”s share.
(3) A claim is communal when the debtor must perform to all the creditors
and any creditor may require performance only for the benefit of all.
Article 10:202: Apportionment of Separate Claims

Separate creditors are entitled to equal shares unless the contract or the law
provides otherwise.
Article 10:203: Difficulties of executing a Communal Claim

If one of the creditors in a communal claim refuses, or is unable to receive,
the performance, the debtor may discharge the obligation to perform by
depositing the property or money with a third party according to Articles
7:110 or 7:111 of the Principles.
Article 10:204: Apportionment of Solidary Claims

(1) Solidary creditors are entitled to equal shares unless the contract or the
law provides otherwise.
(2) A creditor who has received more than that creditor’s share must transfer
the excess to the other creditors to the extent of their respective shares.
Article 10:205: Regime of Solidary Claims

(1) A release granted to the debtor by one of the solidary creditors has no
effect on the other solidary creditors
(2) The rules of Articles 10:107, 10:109, 10:110 and 10:111(1) apply, with
appropriate adaptations, to solidary claims.
CHAPTER 11: ASSIGNMENT OF CLAIMS

Section 1: General Principles
Article 11:101: Scope of Chapter
(1) This Chapter applies to the assignment by agreement of a right to
performance (“claim”) under an existing or future contract.
(2) Except where otherwise stated or the context otherwise requires, this
Chapter also applies to the assignment by agreement of other trans-
ferable claims.
(3) This Chapter does not apply:
(a) to the transfer of a financial instrument or investment security
where, under the law otherwise applicable, such transfer must be by
entry in a register maintained by or for the issuer; or
(b) to the transfer of a bill of exchange or other negotiable instrument or
of a negotiable security or a document of title to goods where, under
the law otherwise applicable, such transfer must be by delivery (with
any necessary indorsement).
(4) In this Chapter “assignment” includes an assignment by way of security.
(5) This Chapter also applies, with appropriate adaptations, to the granting
by agreement of a right in security over a claim otherwise than by
assignment.
Article 11:102: Contractual Claims Generally Assignable

(1) Subject to Articles 11:301 and 11:302, a party to a contract may assign a
claim under it.
(2) A future claim arising under an existing or future contract may be assigned
if at the time when it comes into existence, or at such other time as the
parties agree, it can be identified as the claim to which the assignment relates.
Article 11:103: Partial Assignment

A claim which is divisible may be assigned in part, but the assignor is liable to
the debtor for any increased costs which the debtor thereby incurs.
Article 11:104: Form of Assignment

An assignment need not be in writing and is not subject to any other
requirement as to form. It may be proved by any means, including witnesses.
Section 2: Effects of Assignment As Between Assignor and Assignee

Article 11:201: Rights Transferred to Assignee
(1) The assignment of a claim transfers to the assignee:
(a) all the assignor’s rights to performance in respect of the claim assigned;
and
(b) all accessory rights securing such performance.
(2) Where the assignment of a claim under a contract is associated with the
substitution of the assignee as debtor in respect of any obligation owed
by the assignor under the same contract, this Article takes effect subject
to Article 12:201.
Article 11:202: When Assignment Takes Effect

(1) An assignment of an existing claim takes effect at the time of the
agreement to assign or such later time as the assignor and assignee agree.
(2) An assignment of a future claim is dependent upon the assigned claim
coming into existence but thereupon takes effect from the time of the
agreement to assign or such later time as the assignor and assignee agree.
Article 11:203: Preservation of Assignee’s Rights Against Assignor

An assignment is effective as between the assignor and assignee, and entitles
the assignee to whatever the assignor receives from the debtor, even if it is
ineffective against the debtor under Article 11:301 or 11:302.
Article 11:204: Undertakings by Assignor

By assigning or purporting to assign a claim the assignor undertakes to the
assignee that:
(a) at the time when the assignment is to take effect the following conditions
will be satisfied except as otherwise disclosed to the assignee:
(i) the assignor has the right to assign the claim;
(ii) the claim exists and the assignee’s rights are not affected by any
defences or rights (including any right of set-off) which the debtor
might have against the assignor; and
(iii) the claim is not subject to any prior assignment or right in security in
favour of any other party or to any other incumbrance;
(b) the claim and any contract under which it arises will not be modified
without the consent of the assignee unless the modification is provided
for in the assignment agreement or is one which is made in good faith
and is of a nature to which the assignee could not reasonably object; and
(c) the assignor will transfer to the assignee all transferable rights intended
to secure performance which are not accessory rights.
Section 3: Effects of Assignment As Between Assignee and Debtor

Article 11:301: Contractual Prohibition of Assignment
(1) An assignment which is prohibited by or is otherwise not in conformity
with the contract under which the assigned claim arises is not effective
against the debtor unless:
(a) the debtor has consented to it; or
(b) the assignee neither knew nor ought to have known of the non-
conformity; or
(c) the assignment is made under a contract for the assignment of future
rights to payment of money.
(2) Nothing in the preceding paragraph affects the assignor’s liability for the
non-conformity.
Article 11:302: Other Ineffective Assignments

An assignment to which the debtor has not consented is ineffective against
the debtor so far as it relates to a performance which the debtor, by reason of
the nature of the performance or the relationship of the debtor and the assignor,
could not reasonably be required to render to anyone except the assignor.
Article 11:303: Effect on Debtor’s Obligation

(1) Subject to Articles 11:301, 11:302, 11:307 and 11:308, the debtor is
bound to perform in favour of the assignee if and only if the debtor has
received a notice in writing from the assignor or the assignee which
reasonably identifies the claim which has been assigned and requires the
debtor to give performance to the assignee.
(2) However, if such notice is given by the assignee, the debtor may within a
reasonable time request the assignee to provide reliable evidence of the
assignment, pending which the debtor may withhold performance.
(3) Where the debtor has acquired knowledge of the assignment otherwise
than by a notice conforming to paragraph (1), the debtor may either
withhold performance from or give performance to the assignee.
(4) Where the debtor gives performance to the assignor, the debtor is dis-
charged if and only if the performance is given without knowledge of the
assignment.
Article 11:304: Protection of Debtor

A debtor who performs in favour of a person identified as assignee in a notice
of assignment under Article 11:303 is discharged unless the debtor could not
have been unaware that such person was not the person entitled to per-
formance.
Article 11:305: Competing Demands

A debtor who has received notice of two or more competing demands for
performance may discharge liability by conforming to the law of the due
place of performance, or, if the performances are due in different places, the
law applicable to the claim.
Article 11:306: Place of Performance

(1) Where the assigned claim relates to an obligation to pay money at a
particular place, the assignee may require payment at any place within
the same country or, if that country is a Member State of the European
Union, at any place within the European Union, but the assignor is liable
to the debtor for any increased costs which the debtor incurs by reason of
any change in the place of performance.
(2) Where the assigned claim relates to a non-monetary obligation to be per-
formed at a particular place, the assignee may not require performance
at any other place.
Article 11:307: Defences and Rights of Set-Off

(1) The debtor may set up against the assignee all substantive and procedural
defences to the assigned claim which the debtor could have used against
the assignor.
(2) The debtor may also assert against the assignee all rights of set-off which
would have been available against the assignor under Chapter 13 in
respect of any claim against the assignor:
(a) existing at the time when a notice of assignment, whether or not
conforming to Article 11:303(1), reaches the debtor; or
(b) closely connected with the assigned claim.
Article 11:308: Unauthorised Modification not Binding on Assignee

A modification of the claim made by agreement between the assignor and the
debtor, without the consent of the assignee, after a notice of assignment,
whether or not conforming to Article 11:303(1), reaches the debtor does not
affect the rights of the assignee against the debtor unless the modification is
provided for in the assignment agreement or is one which is made in good
faith and is of a nature to which the assignee could not reasonably object.
Section 4: Order of Priority between Assignee and Competing

Claimants
Article 11:401: Priorities
(1) Where there are successive assignments of the same claim, the assignee
whose assignment is first notified to the debtor has priority over any earlier
assignee if at the time of the later assignment the assignee under that assign-
ment neither knew nor ought to have known of the earlier assignment.
(2) Subject to paragraph (1), the priority of successive assignments, whether of
existing or future claims, is determined by the order in which they are made.
(3) The assignee’s interest in the assigned claim has priority over the interest
of a creditor of the assignor who attaches that claim, whether by judicial
process or otherwise, after the time the assignment has taken effect
under Article 11:202.
(4) In the event of the assignor’s bankruptcy, the assignee’s interest in the
assigned claim has priority over the interest of the assignor’s insolvency
administrator and creditors, subject to any rules of the law applicable to
the bankruptcy relating to:
(a) publicity required as a condition of such priority;
(b) the ranking of claims; or
(c) the avoidance or ineffectiveness of transactions in the bankruptcy
proceedings.
CHAPTER 12: SUBSTITUTION OF NEW DEBTOR:

TRANSFER OF CONTRACT
Section 1: Substitution of New Debtor

Article 12:101: Substitution: General Rules
(1) A third person may undertake with the agreement of the debtor and the
creditor to be substituted as debtor, with the effect that the original
debtor is discharged.
(2) A creditor may agree in advance to a future substitution. In such a case

the substitution takes effect only when the creditor is given notice by the
new debtor of the agreement between the new and the original debtor.
Article 12:102: Effects of Substitution on Defences and Securities

(1) The new debtor cannot invoke against the creditor any rights or defences
arising from the relationship between the new debtor and the original
debtor.
(2) The discharge of the original debtor also extends to any security of the
original debtor given to the creditor for the performance of the obliga-
tion, unless the security is over an asset which is transferred to the new
debtor as part of a transaction between the original and the new debtor.
(3) Upon discharge of the original debtor, a security granted by any person
other than the new debtor for the performance of the obligation is
released, unless that other person agrees that it should continue to be
available to the creditor.
(4) The new debtor may invoke against the creditor all defences which the
original debtor could have invoked against the creditor.
Section 2: Transfer of Contract

Article 12:201: Transfer of Contract
(1) A party to a contract may agree with a third person that that person is to
be substituted as the contracting party. In such a case the substitution
takes effect only where, as a result of the other party’s assent, the first
party is discharged.
(2) To the extent that the substitution of the third person as a contracting
party involves a transfer of rights to performance (“claims”), the pro-
visions of Chapter 11 apply; to the extent that obligations are transferred,
the provisions of Section 1 of this Chapter apply.
CHAPTER 13: SET-OFF
Article 13:101: Requirements for Set-Off

If two parties owe each other obligations of the same kind, either party may
set off that party’s right to performance (“claim”) against the other party’s
claim, if and to the extent that, at the time of set-off, the first party:
(a) is entitled to effect performance; and
(b) may demand the other party’s performance.
Article 13:102: Unascertained Claims

(1) A debtor may not set off a claim which is unascertained as to its existence
or value unless the set-off will not prejudice the interests of the other
party.
(2) Where the claims of both parties arise from the same legal relationship it
is presumed that the other party’s interests will not be prejudiced.
Article 13:103: Foreign Currency Set-Off

Where parties owe each other money in different currencies, each party may
set off that party’s claim against the other party’s claim, unless the parties have
agreed that the party declaring set-off is to pay exclusively in a specified
currency.
Article 13:104: Notice of Set-Off

The right of set-off is exercised by notice to the other party.
Article 13:105: Plurality of Claims and Obligations

(1) Where the party giving notice of set-off has two or more claims against
the other party, the notice is effective only if it identifies the claim to
which it relates.
(2) Where the party giving notice of set-off has to perform two or more obli-
gations towards the other party, the rules in Article 7:109 apply with
appropriate adaptations.
Article 13:106: Effect of Set-Off

Set-off discharges the obligations, as far as they are coextensive, as from the
time of notice.
Article 13:107: Exclusion of Right of Set-Off

Set-off cannot be effected:
(a) where it is excluded by agreement;
(b) against a claim to the extent that that claim is not capable of attachment;
and
(c) against a claim arising from a deliberate wrongful act.
CHAPTER 14: PRESCRIPTION
Section 1: General Provision

Article 14:101: Claims subject to Prescription
A right to performance of an obligation (“claim”) is subject to prescription by
the expiry of a period of time in accordance with these Principles.
Section 2: Periods of Prescription and their Commencement

Article 14:201: General Period
The general period of prescription is three years.
Article 14:202: Period for a Claim Established by Legal Proceedings

(1) The period of prescription for a claim established by judgment is ten
years.
(2) The same applies to a claim established by an arbitral award or other
instrument which is enforceable as if it were a judgment.
Article 14:203: Commencement

(1) The general period of prescription begins to run from the time when the
debtor has to effect performance or, in the case of a right to damages,
from the time of the act which gives rise to the claim.
(2) Where the debtor is under a continuing obligation to do or refrain from
doing something, the general period of prescription begins to run with
each breach of the obligation.
(3) The period of prescription set out in Article 14:202 begins to run from
the time when the judgment or arbitral award obtains the effect of res
judicata, or the other instrument becomes enforceable, though not
before the debtor has to effect performance.
Section 3: Extension of Period

Article 14:301: Suspension in Case of Ignorance
The running of the period of prescription is suspended as long as the creditor
does not know of, and could not reasonably know of:
(a) the identity of the debtor; or
(b) the facts giving rise to the claim including, in the case of a right to
damages, the type of damage.
Article 14:302: Suspension in Case of Judicial and Other Proceedings

(1) The running of the period of prescription is suspended from the time
when judicial proceedings on the claim are begun.
(2) Suspension lasts until a decision has been made which has the effect of
res judicata, or until the case has been otherwise disposed of.
(3) These provisions apply, with appropriate adaptations, to arbitration
proceedings and to all other proceedings initiated with the aim of obtain-
ing an instrument which is enforceable as if it were a judgment.
Article 14:303: Suspension in Case of Impediment beyond

Creditor’s Control
(1) The running of the period of prescription is suspended as long as the
creditor is prevented from pursuing the claim by an impediment which is
beyond the creditor”s control and which the creditor could not reason-
ably have been expected to avoid or overcome.
(2) Paragraph (1) applies only if the impediment arises, or subsists, within
the last six months of the prescription period.
Article 14:304: Postponement of Expiry in Case of Negotiations

If the parties negotiate about the claim, or about circumstances from which a
claim might arise, the period of prescription does not expire before one year
has passed since the last communication made in the negotiations.
Article 14:305: Postponement of Expiry in Case of Incapacity

(1) If a person subject to an incapacity is without a representative, the period
of prescription of a claim held by or against that person does not expire
before one year has passed after either the incapacity has ended or a
representative has been appointed.
(2) The period of prescription of claims between a person subject to an
incapacity and that person’s representative does not expire before one
year has passed after either the incapacity has ended or a new represen-
tative has been appointed.
Article 14:306: Postponement of Expiry: Deceased’s Estate

Where the creditor or debtor has died, the period of prescription of a claim
held by or against the deceased’s estate does not expire before one year has
passed after the claim can be enforced by or against an heir, or by or against
a representative of the estate.
Article 14:307: Maximum Length of Period

The period of prescription cannot be extended, by suspension of its running
or postponement of its expiry under these Principles, to more than ten years
or, in case of claims for personal injuries, to more than thirty years. This does
not apply to suspension under Article 14:302.
Section 4: Renewal of Periods

Article 14:401: Renewal by Acknowledgement
(1) If the debtor acknowledges the claim, vis-à-vis the creditor, by part
payment, payment of interest, giving of security, or in any other manner,
a new period of prescription begins to run.
(2) The new period is the general period of prescription, regardless of
whether the claim was originally subject to the general period of prescrip-
tion or the ten year period under Article 14:202. In the latter case,
however, this Article does not operate so as to shorten the ten year period.
Article 14:402: Renewal by Attempted Execution

The ten year period of prescription laid down in Article 14:202 begins to run
again with each reasonable attempt at execution undertaken by the creditor.
Section 5: Effects of Prescription

Article 14:501: General Effect
(1) After expiry of the period of prescription the debtor is entitled to refuse
performance.
(2) Whatever has been performed in order to discharge a claim may not be
reclaimed merely because the period of prescription had expired.
Article 14:502: Effect on Ancillary Claims

The period of prescription for a right to payment of interest, and other claims
of an ancillary nature, expires not later than the period for the principal claim.
Article 14:503: Effect on Set-Off

A claim in relation to which the period of prescription has expired may
nonetheless be set off, unless the debtor has invoked prescription previously
or does so within two months of notification of set-off.
Section 6: Modification by Agreement

Article 14:601: Agreements Concerning Prescription
(1) The requirements for prescription may be modified by agreement between
the parties, in particular by either shortening or lengthening the periods
of prescription.
(2) The period of prescription may not, however, be reduced to less than one
year or extended to more than thirty years after the time of commence-
ment set out in Article 14:203.
CHAPTER 15: ILLEGALITY

Article 15:101: Contracts Contrary to Fundamental Principles
A contract is of no effect to the extent that it is contrary to principles
recognised as fundamental in the laws of the Member States of the European
Union.
Article 15:102: Contracts Infringing Mandatory Rules

(1) Where a contract infringes a mandatory rule of law applicable under Article
1:103 of these Principles, the effects of that infringement upon the
contract are the effects, if any, expressly prescribed by that mandatory rule.
(2) Where the mandatory rule does not expressly prescribe the effects of an
infringement upon a contract, the contract may be declared to have full
effect, to have some effect, to have no effect, or to be subject to modifi-
cation.
(3) A decision reached under paragraph (2) must be an appropriate and
proportional response to the infringement, having regard to all relevant
circumstances, including:
(a) the purpose of the rule which has been infringed;
(b) the category of persons for whose protection the rule exists;
(c) any sanction that may be imposed under the rule infringed;
(d) the seriousness of the infringement;
(e) whether the infringement was intentional; and
(f) the closeness of the relationship between the infringement and the
contract.
Article 15:103: Partial Ineffectiveness

(1) If only part of a contract is rendered ineffective under Articles 15:101 or
15:102, the remaining part continues in effect unless, giving due con-
sideration to all the circumstances of the case, it is unreasonable to

uphold it.
(2) Articles 15:104 and 15:105 apply, with appropriate adaptations, to a case
of partial ineffectiveness.
Article 15:104: Restitution

(1) When a contract is rendered ineffective under Articles 15:101 or 15:102,
either party may claim restitution of whatever that party has supplied
under the contract, provided that, where appropriate, concurrent resti-
tution is made of whatever has been received.
(2) When considering whether to grant restitution under paragraph (1), and
what concurrent restitution, if any, would be appropriate, regard must be
had to the factors referred to in Article 15:102(3).
(3) An award of restitution may be refused to a party who knew or ought to
have known of the reason for the ineffectiveness.
(4) If restitution cannot be made in kind for any reason, a reasonable sum
must be paid for what has been received.
Article 15:105: Damages

(1) A party to a contract which is rendered ineffective under Articles 15:101
or 15:102 may recover from the other party damages putting the first
party as nearly as possible into the same position as if the contract had not
been concluded, provided that the other party knew or ought to have
known of the reason for the ineffectiveness.
(2) When considering whether to award damages under paragraph (1),
regard must be had to the factors referred to in Article 15:102(3).
(3) An award of damages may be refused where the first party knew or ought
to have known of the reason for the ineffectiveness.
CHAPTER 16: CONDITIONS
Article 16:101: Types of Condition

A contractual obligation may be made conditional upon the occurrence of an
uncertain future event, so that the obligation takes effect only if the event
occurs (suspensive condition) or comes to an end if the event occurs
(resolutive condition).
Article 16:102: Interference with Conditions

(1) If fulfilment of a condition is prevented by a party, contrary to duties of
good faith and fair dealing or co-operation, and if fulfilment would have
operated to that party’s disadvantage, the condition is deemed to be
fulfilled.
(2) If fulfilment of a condition is brought about by a party, contrary to duties
of good faith and fair dealing or co-operation, and if fulfilment operates
to that party’s advantage, the condition is deemed not to be fulfilled.
Article 16:103: Effect of Conditions

(1) Upon fulfilment of a suspensive condition, the relevant obligation takes
effect unless the parties otherwise agree.
(2) Upon fulfilment of a resolutive condition, the relevant obligation comes
to an end unless the parties otherwise agree.
CHAPTER 17: CAPITALISATION OF INTEREST
Article 17:101: When Interest to be Added to Capital

(1) Interest payable according to Article 9:508(1) is added to the outstanding
capital every 12 months.
(2) Paragraph (1) of this Article does not apply if the parties have provided
for interest upon delay in payment.
List of Cases
AXZS Industries v AF Dreyer (Pty) Ltd 2004 (4) SA 186 (W) ............................. 195
A to Z Bazaars (Pty) Ltd v Minister of Agriculture 1974 (4) SA 392 (C) ............... 90
A to Z Bazaars (Pty) Ltd v Minister of Agriculture 1975 (3) SA 468 (AD) ...... 85, 87
Aaron v Landcraft Inc 2005 La App LEXIS 616 ..................................................... 51
Ackermann v Burland and Milunsky 1944 WLD 172 ........................................... 225
Adams v Lindsell (1818) 1 B & Ald 681 ............................................................. 81, 84
Adams v SA Motor Industry Employers Association 1981 (3) SA 1189 (A) ......... 232
Adel Builders (Pty) Ltd v Thompson [2000] 4 All SA 341 (A) .............................. 357
African Organic Fertilizers & Associated Industries Ltd v Sieling
1949 (2) SA 131 (W) .......................................................................................... 301
African Universal Stores Ltd v Dean 1926 CPD 390 .................................... 221, 224
Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) ............... 63, 64, 65, 66, 168
Agnew v CIR [2001] 2 AC 710 ............................................................................... 193
Ahmed v Akhtar 1997 SLT 218 .............................................................................. 283
Aktiebolaget Hässle v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) ........................ 187
Alan (W J) & Co Ltd v El Nasr Export and Import Co [1972] 2 QB 189 (CA) ... 237
Allan’s Trustees v Lord Advocate 1971 SC (HL) 45 .............................................. 218
Amcoal Collieries Ltd v Truter 1990 (1) SA 1 (A) ................................................... 83
Amoils v Amoils 1924 WLD 88 .............................................................................. 251
Anderson v Pringle of Scotland 1998 SLT 754 ...................................................... 263
Ankon CC v Tadkor Properties (Pty) Ltd 1991 (3) SA 119 (C) ............................ 285
Arlyn Butcheries (Pty) Ltd v Bosch 1966 (2) SA 308 (W) .................................... 254
Armagas Ltd v Mundogas SA [1986] 1 AC 717 ..................................................... 126
Armia Ltd v Daejan Developments Ltd 1979 SC (HL) 56 ................................... 129
Armstrong v Magid 1937 AD 260 .......................................................................... 158
Atkinson v Vause’s Executors (1892) 13 NLR 85 .................................................. 251
Atteridgeville Town Council v Livanos 1992 (1) SA 296 (A) ................................ 297
Aucamp v Morton 1949 (3) SA 611 (A) ................................................................. 284
Avintair Ltd v Ryder Airline Services Ltd 1994 SC 270 ........................................ 106
B & H Engineering v First National Bank of SA Ltd 1995 (2)

SA 279 (A) ............................................................ 231, 232, 235, 241, 241–42, 245
BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979 (1) SA 391 (A) ........................................................................... 294, 295, 301
Badalamenti v Jefferson Guaranty Bank 759 So 2d 274 (2000) .............................. 51
415
Bagradi v Cavendish Transport Co (Pty) Ltd 1957 (1) SA 663 (D) .............. 224, 227
Bal v Van Staden 1902 TS 128 .................................................................................. 84
Balfour Beatty Construction (Scotland) Ltd v Scottish Power plc
1994 SC (HL) 20 ................................................................................ 274, 275, 276
Bank of Credit and Commerce International v Ali [2002] 1 AC 251 ... 181, 182, 183
Bank of Montreal v Bail Ltd [1992] 2 SCR 554 ...................................................... 53
Bank of Montreal v Kuet Leong Ng [1989] 2 SCR 429 .......................................... 53
Bank of Scotland v Brunswick Developments (1987) Ltd (No 2)
1998 SLT 439 ............................................................................................. 127, 129
Bank of Scotland v Dunedin Property Investment Co 1998
SC 657 ........................................................................................ 186, 189, 190, 191
Bank of Scotland v Junior 1999 SCLR 284 .................................................... 186, 194
Banque national de Paris (Canada) v 165836 Canada Inc [2004] 2 SCR 45 .......... 53
Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd
[1979] 3 All ER 522 (QB) .......................................................................... 242, 245
Barclays Bank plc v O’Brien [1994] 1 AC 180 ................................... 56, 62, 167, 172
Barker v Beckett & Co Ltd 1911 TPD 151 ........................................................... 251
Barnard v Barnard 2000 (3) SA 741 (C) ................................................................ 168
Barnett v Abe Swersky & Associates 1986 (4) SA 407 (C) .................................... 213
Barnhoorn v Duvenhage 1964 (2) SA 486 (A) ....................................................... 256
Basson v Chilwan 1993 (3) SA 742 (A) .......................................................... 251, 254
Beeton v Peninsula Transport Co (Pty) Ltd 1934 CPD 53 ................................... 258
Bellairs v Hodnett 1978 (1) SA 1109 (A) ............................................... 336, 353, 358
Belshaw v Bush (1851) 11 CB 191 (138 ER 444) .................................................. 244
Bennett v Inveresk Paper Co (1891) 18 R 975 .............................................. 146, 149
Benson v SA Mutual Life Assurance Society 1986 (1)
SA 776 (A) .................................................................................. 252, 255, 256, 257
Beswick v Beswick [1968] AC 58 ................................................................... 204, 205
Bieber-Guillory v Aswell 723 So 2d 1145 (1998) ..................................................... 52
Blair’s Trustees v Payne (1884) 12 R 104 ............................................................... 359
Bloom v American Swiss Watch Co 1915 AD 100 .................................................. 83
Blumer v Scott (1874) 1 R 379 ............................................................................... 218
BOE Bank v Van Zyl 2002 (5) SA 165 (C) ....................................................... 64, 157
Bok Clothing Manufacturers (Pty) Ltd v Lady Land (Pty) Ltd
1982 (2) SA 565 (C) ........................................................................................... 107
Boland Bank Ltd v Pienaar 1988 (3) SA 618 (A) ................................................... 295
Boland Bank Ltd v The Master 1991 (3) SA 387 (A) ............................................ 353
Bolt & Nut Co (Tipton) v Rowlands, Nicholls & Co [1964] 2 QB 10 .................. 233
Botha (now Griessel) v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A) .................... 164
Bovis Construction Ltd v Whatlings Construction Ltd 1994 SLT 865 ................. 190
Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesselschaft mbH
[1982] 1 All ER 293 (HL) .............................................................................. 80, 82
Brisley v Drotsky 2002 (4) SA 1 (SCA) .............................. 63, 66, 164, 174, 251, 260
British Bata Shoe Co Ltd v Double M Shah Ltd 1980 SC 311 ............ 127, 132, 145
British Road Services v Arthur Crutchley [1968] 1 All ER 811 .................... 102, 121
list of cases 417
Broodryk v Smuts NO 1942 TPD 47 ............................................................. 157, 171

Bruner v Moore [1904] 1 Ch 305 ............................................................................. 82
Building Material Manufacturers Ltd v Marais 1990 (1) SA 243 (O) .................... 88
Bunge Corp v Tradax Export SA [1981] 1 WLR 711 .................................... 106, 141
Burnley v Alford (1919) 2 SLT 123 .............................................................. 80, 82, 90
Bursey v Bursey 1997 (4) SA 580 (E) .................................................................... 222
Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England) Ltd [1979]
1 All ER 965 (CA) ................................................................ 100, 102–07, 110, 121
CIBC Mortgage Corp v Vasquez [2002] 3 SCR 168 ............................................... 53

Cairncross v Lorimer (1860) 3 Macq 827 .............................................................. 131
Cameron (Scotland) Ltd v Melville Dundas Ltd 2001 SCLR 691 ....................... 192
Cameron’s Trustees v Cameron 1907 SC 407 ........................................................ 218
Campbell v First Consolidated Holdings (Pty) Ltd 1977 (3) SA 924 (W) ............ 256
Campbell v Ker 24 Feb 1810 FC ............................................................................. 77
Cantiere San Rocco v Clyde Shipbuilding and Engineering Co 1923
SC (HL) 105 ............................................................................................... 300, 304
Cape Explosive Works Ltd v South African Oil & Fat Industries Ltd
1921 CPD 244 .......................................................................................... 79, 84–87
Cape Produce Co (PE) (Pty) Ltd v Dal Maso 2001 (2) SA 182 (W) ............ 216, 221
Carmichael v Carmichael’s Executrix 1919 SC (HL) 195 ............................. 204, 218
Carmichael v Carmichael’s Executrix 1919 SC 636 ............................... 204, 218, 220
Carpet Contracts (Pty) Ltd v Grobler 1975 (2) SA 436 (T) .................................. 253
Carrim v Omar 2001 (4) SA 691 (W) ..................................................................... 340
Centrovincial Estates plc v Merchant Investors Assurance Ltd
[1983] Com LR 158 ........................................................................................... 182
Charge Card Services Ltd, Re [1986] 3 All ER 289 (Ch D) ... 235, 236, 238, 239, 240
Chevron Engineering (Pty) Ltd v Nkambules 2004 (3) SA 495 (SCA) ................ 258
Chitton Bros v S Eker, 8 July 1980, OH (unreported) .................................... 109–10
Church Commissioners for England v Abbey National plc 1994 SC 651 ............ 261
Cinema City (Pty) Ltd v Morgenstern Family Estates (Pty) Ltd
1980 (1) SA 796 (AD) ........................................................................................ 189
City Wall Properties (Scotland) Ltd v Pearl Assurance plc 2004 SC 214 ............. 191
Clark Contracts v Burrel Construction 2003 SLT (Sh Ct) 73 ............... 207, 223, 224
Clydesdale Bank plc v Black 2002 SC 555 ................................................. 56, 70, 172
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales
(1982) 149 CLR 337 .......................................................................................... 191
Cohen v Shires, McHattie and King (1882) 1 SAR 41 .................................. 251, 255
Commissioner for Inland Revenue v Crewe 1943 AD 656 ................................... 216
Commissioner for Inland Revenue v Visser 1959 (1) SA 452 (A) ......................... 240
Compagnie France Film Inc v Imax Corporation, JE 2002–5 (CAQ) ................... 54
Connelly v Simpson 1993 SC 391 .......................................................................... 297
Connock’s (SA) Motor Co Ltd v Sentraal Westelike Ko-operatiewe
Mpy Bpk 1964 (2) SA 47 (T) ............................................................................. 128
Conradie v Rossouw 1919 AD 279 ......................................................................... 206
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1261
Co-operative Insurance Society Ltd v Halfords Ltd 1998 SC 212 ....................... 263
Coopers & Lybrand v Bryant 1995 (3) SA 761 (A) ................................ 187, 189, 191
Coronation Syndicate, Re 1903 TH 254 ................................................................ 256
Cosar Ltd v UPS Ltd 1999 SLT 259 ...................................................................... 276
Cowan v Pomeroy 1952 (3) SA 645 (C) ................................................................. 254
Cowley v Estate Loumeau1925 AD 392 ................................................................ 287
Craig (A F) & Co Ltd v Blackater 1923 SC 472 .................................................... 139
Crawley v Rex 1909 TS 1105 .................................................................................... 77
Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144 .................... 168
Cresswell v Potter [1978] 1 WLR 255 ................................................................... 163
Crookes NO v Watson 1956 (1) SA 277 (A) ........................................... 206, 212, 216
Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koöperasie
Beperk. 1972 (1) SA 761 (A) ..................................................................... 137, 138
Culverwell v Brown 1990 (1) SA 7 (A) ................................................................... 283
Cumming v Brown 1994 SLT (Sh Ct) 11 ............................................... 291, 292, 306
Cumming v Quartzag Ltd 1980 SC 276 ................................................................. 215
Cunningham’s Trustees v Hutton (1847) 10 D 307 ............................................... 243
Darlington Borough Council v Wiltshier Northern Ltd

[1995] 1 WLR 68 ............................................................................... 126, 205, 206
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd
2001 (2) SA 284 (SCA) .............................................................................. 288, 289
Davehill (Pty) Ltd v Community Development Board
1988 (1) SA 290 (A) ................................................................................... 353, 354
Davidson (John) (Pipes) Ltd v First Engineering Ltd 2001 SCLR 73 ................. 127
Dawson International plc v Coats Paton plc 1988 SLT 854 .................................... 60
De Jager v Burger 1994 (1) SA 402 (C) ................................................................... 83
De Wet v Kuhn 1910 CPD 263 .............................................................................. 294
Dearle v Hall (1828) 3 Russ 1 ................................................................................ 324
Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A) .................................... 189
Dempster (R & J) v Motherwell Bridge and Engineering Co Ltd 1964 SC 308 .... 110
Densam (Pty) Ltd v Cywilnat 1991 (1) SA 100 (A) ............................................... 324
Dietrichsen v Dietrichsen 1911 TPD 486 ............................................................... 83
Diners Club South Africa (Pty) Ltd v Durban Engineering (Pty) Ltd
1980 (3) SA 53 (A) ............................................................................................. 235
Director-General of Fair Trading v First National Bank [2002]
1 AC 481 ................................................................................................. 38, 48, 122
D-Jay Corporation CC v Investor Management Services (Pty) Ltd
2000 (2) SA 755 (W) .......................................................................................... 204
Dornier GmbH v Cannon 1991 SC 310 ................................................ 127, 131, 132
Douglas v Douglas’s Trustees (1867) 5 M 827 ............................................... 333, 343
Drakeford v Piercy (1866) 7 B & S 515 ................................................................. 147
Driftwood Properties (Pty) Ltd v McLean 1971 (3) SA 591 (A) ............................ 83
Drive Yourself Hire Co (London) Ltd v Strutt [1954] 1 QB 250 ................... 203–04
list of cases 419
Dunlop v Higgins [1848] 1 HLC 381 .......................................................... 80, 81, 84

Dunlop v Selfridge [1915] AC 847 ......................................................................... 203
Dunmore (Countess of) v Alexander (1830) 9 S 190 .............................................. 82
Durban Rickshas Ltd v Ball 1933 NPD 479 .......................................................... 254
Edinburgh Grain Ltd v Marshall Food Group Ltd 1999 SLT 15 ......................... 283
Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman NO
1997 (4) SA 302 (SCA) .......................................................................... 62, 63, 171
Elgin Brown & Hamer (Pty) Ltd v Industrial Machinery Suppliers
(Pty) Ltd 1993 (3) SA 424 (A) ........................................................................... 284
Emslie v African Merchants Ltd 1908 EDC 82 ............................................ 271, 272
Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 ........................... 80, 82
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton
1973 (3) SA 685 (A) ........................................................................................... 232
Esso Petroleum Co Ltd v Harpers Garage (Stourport) Ltd [1968] AC 269 ........ 264
Esterhuyse v Selection Cartage (Pty) Ltd 1965 (1) SA 360 (W) ........................... 232
Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd 1999 (2) SA 719 (SCA) ........ 301
Farmer’s Co-operative Society (Reg) v Berry

1912 AD 343 .............................................................. 251, 252, 253, 255, 256, 257
Fern Gold Mining Co, The v Tobias (1890) 3 SAR 134 .................................... 79, 84
Fick v Woolcott & Ohlsson’s Cape Breweries 1911 AD 214 ......................... 251, 255
Filanto SpA v Chilewich International Corp, SDNY 1992, 789 F Supp 1229 ..... 115
Findlater v Mann 1990 SLT 465 ............................................................................ 109
Finnie v Glasgow and South Western Railway Co (1857) 3 Macq 75 .................. 209
First Energy (UK) Ltd v Hungarian International Bank Ltd
[1993] 2 Lloyd’s Rep 194 ................................................................................... 126
Fleming v Burgess (1867) 5 M 856 ........................................................................ 243
Ford v Beech (1848) 11 QB 852 ............................................................................ 181
Ford Sellar Morris Properties plc v E W Hutchison Ltd 1990 SC 34 .......... 291, 292
Forrest v Scottish County Investment Co Ltd 1916 SC (HL) 28 ......................... 303
Freeman v Cooke (1848) 2 Ex 654 ........................................................................ 128
Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd
[1964] 2 QB 480 ................................................................................. 127, 129, 131
Froman v Robertson 1971 (1) SA 115 (A) ..................................................... 240, 241
GL Group plc v Ash Gupta Advertising Ltd 1987 SCLR 149 .............................. 288
Gardner v Richardt 1974 (3) SA 768 (C) ............................................................... 221
Gayather v Rajkali 1947 (4) SA 706 (D) ................................................................ 208
Ghaznavi v BP Oil (UK) Ltd 1991 SLT 924 .......................................................... 284
Gibson v Manchester City Council [1978] 1 WLR 520, [1979]
1 WLR 297 (HL) ............................................................................................... 101
Gibson v Woodhead Plant Ltd 1918 AD 308 ........................................................ 253
Glasgow (E & J) Ltd v UGC Estates Ltd [2005] CSOH 63 .................................... 67
Glasgow Pavilion Ltd v Motherwell (1903) 6 F 116 .............................................. 231
Glofinco v Absa Bank Ltd (t/a United Bank) 2002 (6) SA 470 (SCA) ..... 127, 129, 132
Goodwood Racecourse Ltd v Satelite Information Services Ltd
2004 EWHC 2346 (Ch) ..................................................................................... 226
Gordon v Tarnow 1947 (3) SA 525 (A) .................................................................. 232
Govender v Standard Bank of South Africa Ltd 1984 (4) SA 392 (C) .................. 242
Gracie v Hull Blythe and Co (SA) Ltd 1931 CPD 539 ......................................... 258
Grahame v Magistrates of Kirkcaldy (1882) 9 R (HL) 91 ..................................... 262
Grant (William) & Sons Ltd v Glen Catrine Bonded Warehouse Ltd
2001 SC 901 ....................................................................................... 129, 131, 134
Gray v Binny (1879) 7 R 332 .................................................................................... 58
Grobbelaar v Bosch 1964 (3) SA 687 (E) ............................................................... 283
Grosvenor Developments (Scotland) plc v Argyle Stores Ltd 1987 SLT 738 ...... 261
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 ...................... 134
Guncrete (Pty) Ltd v Scharrighuisen Construction (Pty) Ltd
1996 (2) SA 682 (N) ........................................................................................... 107
HK Outfitters (Pty) Ltd v Legal & General Assurance Society Ltd

1975 (1) SA 55 (T) ............................................................................................. 241
HNR Properties CC v Standard Bank of South Africa Ltd 2004 (4)
SA 471 (SCA) ............................................................................................. 187, 189
Hadley v Baxendale (1854) 9 Ex 341 ................................. 270, 271–73, 275–79, 358
Hall-Thermotank Natal (Pty) Ltd v Hardman 1968 (4) SA 818 (D) ............ 299, 301
Hammond v Osborn [2002] EWCA Civ 885 ......................................................... 168
Hardstaal Holdings BV v NN (2001) C99/315HR ................................................ 110
Harness Works (SA) v SA Publishers (Pty) Ltd 1915 CPD 43 ............. 258, 268, 269
Harper v Webster 1956 (2) SA 495 (FC) ............................................................... 302
Hartle v Laceys [1999] Lloyd’s Rep PN 315, CA .................................................. 359
Hartog v Colin & Shields [1939] 3 All ER 566 ...................................................... 179
Hawkins v Contract, Design Centre (Cape Town) 1983 (4) SA 296 (T) ................ 85
Hayman v American Cotton Co (1907) 45 SLR 207 ............................................. 132
Hayne NO v Narun 1926 OPD 207 ....................................................................... 289
Haynes v Kingwilliamstown Municipality 1951 (2)
SA 371 (AD) ............................................................... 252, 253, 255, 256, 257, 258
Heald v Kenworthy (1855) 24 LJ Ex 76, 10 Ex 739 .............................................. 146
Heathfield v Maqelepo 2004 (2) SA 636 (SCA) .................................................... 215
Hendricks v Barnett 1975 (1) SA 765 (N) ............................................................. 157
Higgins & Sons v Dunlop, Wilson & Co (1847) 9 D 1407 ................................ 82, 84
Highland and Universal Properties Ltd v Safeway Properties Ltd
2000 SLT 414 ..................................................................................................... 261
Hill v Hill (1755) Mor 11580 .................................................................................. 218
Hislop v Dickson Motors (Forres) Ltd 1978 SLT (Notes) 73 ............................... 153
Hitchins (Hatfield) Ltd v H Butterworth Ltd, unreported,
Court of Appeal, 25 Feb 1995 ........................................................................... 104
Hofer v Kevitt 1998 (1) SA 382 (SCA) 386 ............................................................ 208
Holgate v Minister of Justice 1995 (1) SA 921 (E) ................................................ 283
list of cases 421
Holland Life Assurance Co Ltd v G J Van der Merwe NO

Case No 569/2003, heard 19 Nov 2004, delivered 30 Nov 2004 ..................... 187
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd
1977 (3) SA 670 (A) ........................................................................... 270, 272, 273
Honam Jade, The [1991] 1 Lloyd’s Rep 38 ............................................................ 106
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd
[1962] 2 QB 26 ........................................................................................... 141, 142
Hood v Cochrane 16 Jan 1818 FC ......................................................................... 139
Hosken Employee Benefits (Pty) Ltd v Slabe 1992 (4) SA 183 (W) .................... 133
Houldsworth v Gordon Cumming 1910 SC (HL) 49 ............................................ 190
Houle v National Bank of Canada [1990] 3 SCR 122 ............................................. 53
Household Fire and Carriage Accident Insurance Co v Grant
(1879) 4 Ex D 216, CA ........................................................................................ 82
Howard Construction Co v Jeff-Cole Quarries Inc, Mo App 1983,
669 SW 2d 221 ................................................................................................... 112
Hughes Aircraft Systems Ltd v Airservices Australia (1997) 146 ALR 1 ............... 61
Hunter v Barron’s Trustees (1886) 13 R 883 ................................................. 186, 192
Hunter v Livingston Development Corporation 1986 SC (HL) 31 ..................... 190
Huyton SA v Peter Cremer GmbH and Co [1999] 1 Lloyd’s Rep 620 ................. 156
Ideal Fastener Corp CC v Book Vision (Pty) Ltd (t/a Colour Graphic)
2001 (3) SA 1028 (D) ................................................................................... 83, 101
Industrial & Mercantile Corporation v Anastassiou Bros 1973 (2)
SA 601 (W) ................................................................................................. 253, 258
Info Plus v Scheelke 1998 (3) SA 184 (SCA) ......................................................... 241
Ingle Colonial Broom Co Ltd v Hocking 1914 CPD 495 ..................................... 251
Inrybelange (Edms) Bpk v Pretorius 1966 (2) SA 416 (A) .................................... 293
Interaccess (Pty) Ltd v Van Dorsten [1999] 2 All SA 561 (C) .............................. 346
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd
[1989] QB 433 ...................................................................................................... 45
Investors Compensation Scheme v West Bromwich Building
Society [1998] 1 WLR 896 ........................................ 181, 182, 186, 187, 188, 198
Irvine & Co v Watson (1874) QBD 414 ................................................................. 146
ISEP Structural Engineering and Plating (Pty) Ltd v Inland
Exploration Co (Pty) Ltd 1981 (4) SA 1 (A) ..................................... 257, 258, 260
Jacobsz v Fall 1981 (2) SA 863 (C) ......................................................................... 255

James v Isaacs (1852) 22 LJCP 73; 12 CB 791, 138 ER 1115 ............................... 244
Jamieson, ex parte: In Re Jamieson v Sabingo 2001 (2) SA 775 (W) ...................... 85
Jankelow v Binder Gering and Co 1927 TPD 364 ........................................ 212, 213
Jarvie’s Trustee v Jarvie’s Trustees (1887) 14 R 411 ............................................... 218
Joffe v African Life Assurance Society Ltd 1933 TPD 189 ................................... 231
Johnstone v Harris 1977 SC 365 ............................................................................ 287
Jolicoeur v Rainville, JE 2000–201 (CAQ) ............................................................... 54
Jonker v Boland Bank Pks Bpk 2000 (1) SA 542 (O) ............................................ 133
Kaap Suiwelkoöperasie Bpk v Louw 2001 (2) SA 80 (SCA) ................................... 86

Karen Oltmann, The [1976] 2 Lloyd’s Rep 708 ............................................. 182, 198
Karlshamns Oljefabriker (A/B) v Monarch Steamship Co Ltd
[1949] AC 196; 1949 SC (HL) 1 ............................................................... 274, 275
Karoulias (W S) SA v Drambuie Liqueur Co Ltd 2004 GWD 31-638,
2005 SLT 813 ....................................................................................................... 59
Karstein v Moribe 1982 (2) SA 282 (T) .................................................................. 138
Katz v Efthimiou 1948 (4) SA 603 (O) ................................................................... 254
Keighley Maxsted & Co v Durant [1901] AC 240 ......................................... 136, 140
Kelner v Baxter (1866) LR 2 CP 174 ..................................................................... 215
Kergeulen Sealing & Whaling Co Ltd v Commissioner for Inland Revenue
1939 AD 487 .................................................................................................. 85, 87
Kerry v Handel, Garth & Co (1905) 21 Sh Ct Rep 106 ........................................ 132
Kharegat v Deloitte & Touche LLP [2004] EWHC 1767 (QB) ................... 213, 214
King v Parish National Bank 885 So 2d 540 (2004) ................................................ 51
Kite v Gus Kaplan Inc 747 So 2d 503 (1999) .......................................................... 52
Koufos v C Czarnikow Ltd, The Heron II [1969] 1 AC 350 ................. 273, 274, 277
Kymer v Suwercropp (1807) 1 Camp 109 ............................................................. 150
Kynochs Ltd v Transvaal Silver and Base Metals Ltd 1922
WLD 71 ............................................................................................. 208, 209, 226
LTA Construction Bpk v Administrateur, Transvaal 1992 (1) SA 473 (A) .... 348, 349
Laemthong International Lines Co Ltd v Artis [2005] All ER (D) 50,
[2005] 1 Lloyd’s Rep 100 ................................................................................... 213
Langverwacht Farming Co v Sedgwick & Co Ltd (II) 1942 CPD 155 ................ 295
Lavery & Co Ltd v Jungheinrich 1931 AD 156 ............................................. 272, 273
Laws v Rutherford 1924 AD 261 ............................................................................. 83
Le Roux v Odendaal 1954 (4) SA 432 (N) ............................................................. 256
Leggat Brothers v Gray 1908 SC 67 ........................................................ 231, 233–34
Levben Products (Pty) Ltd v Alexander Films (SA) (Pty) Ltd 1959 (3)
SA 208 (SR) .................................................................................................... 89, 90
Levin v May 887 So 2d 497 (2004) ........................................................................... 51
Leviseur v Scott 1922 OPD 138 ..................................................................... 293, 294
Libertas-Kommerz GmbH v Johnson 1977 SC 191 .............................................. 314
Linden Gardens Trust Ltd v Lenesta Sludge Disposal Ltd [1994] 1 AC 85 ........ 223
Lindley Catering Investments Ltd v Hibernian Football Club Ltd
1975 SLT (Notes) 56 .......................................................................................... 292
Lindsay Plant Ltd v Norwest Group plc 2000 SC 93 ............................................ 186
Lines v Liberty Life Association of Africa Ltd 1990 (3) SA 268 (T) ....................... 83
Linton v Corser 1952 (3) SA 685 (A) ..................................................................... 336
Littlejohn v Hadwen (1882) 20 SLR 5 ..................................................................... 88
Lloyds Bank Ltd v Bundy [1975] QB 326.............................................................. 171
Lobb (Alec) (Garages) Ltd v Total Oil (Great Britain) Ltd [1983]
1 WLR 87 ................................................................................................... 162, 163
Logan (David) & Sons Ltd v Schuldt (1903) 10 SLT 598 ..................................... 145
list of cases 423
Lombard v Pongola Sugar Milling Co Ltd 1963 (4) SA 860 (A) ........................... 169
Longhorn Group (Pty) Ltd v The Fedics Group (Pty) Ltd 1995 (3)
SA 836 (W) ......................................................................................................... 253
Love v Amalgamated Society of Lithographic Printers of Great Britain
and Ireland 1912 SC 1078 ................................................................................. 220
Lynch v DPP of Northern Ireland [1975] AC 653 ........................................ 153, 154
Macarthur v Lawson (1877) 4 R 1134 .................................................................... 263

McAlpine (Alfred) Construction Ltd v Panatown Ltd
[2001] 1 AC 518 ......................................................... 204, 205, 206, 207, 223, 224
McCall’s Entertainments v South Ayrshire Council 1998 SLT 1403 ...................... 59
McCall’s Entertainments v South Ayrshire Council (No 2) 1998 SLT 1423 .......... 59
McCullogh v Fernwood Estate Ltd 1920 AD 204 ................................ 204, 208, 215
Mackay v Dick and Stevenson (1881) 8 R (HL) 37 ................................................. 58
McKimmie’s Trustees v Armour (1899) 2 F 156 ................................................... 293
McLaren Murdoch & Hamilton Ltd v The Abercromby Motor Group
Ltd 2003 SCLR 323 ................................................................................... 223, 224
Maclean v Campbell (1856) 18 D 609 ........................................................... 333, 353
MKM LLC v Rebstock Marine Transportation Inc 776 So 2d 460 (2000) ............ 51
Macari v Celtic Football and Athletic Club Ltd 1999 SC 628 ........................ 59, 284
Magellan International Corp v Salzgitter Handel GmbH, DC Ill, 1999,
US Dist Lexis 19386 .......................................................................................... 115
Magna Alloys and Research (SA) Pty Ltd v Ellis 1984 (4) SA 874 (A) ................. 254
Mahabeer v Sharma 1985 (3) SA 729 (A) .............................................................. 306
Mahmood v Mahmood 1993 SLT 589 ................................................................... 153
Malelane Suikerkorporasie (Edms) Bpk v Streak 1970 (4) SA 478 (T) ........ 209, 212
Malik v BCCI [1998] AC 20 ................................................................................... 274
Malilang v MV Houda Pearl 1986 (2) SA 714 (A) ................................................. 157
Manasewitz v Oosthuizen 1914 CPD 328 ..................................................... 253, 256
Mannai Investment Co Ltd v Eagle Star Insurance
[1997] AC 749 ............................................................................ 182, 186, 188, 198
Margrie Holdings Ltd v City of Edinburgh District Council 1994 SC 1 ............. 358
Marks Ltd v Laughton 1920 AD 12 ....................................................................... 301
Martel Building Ltd v Canada (2000) 12 SCR 860 ................................................. 54
Mason v Benhar Coal Co (1882) 9 R 883 ................................................................ 82
Meier v Kuchenmeister (1881) 8 R 642 ......................................................... 139, 140
Metcash Trading Ltd v Credit Guarantee Insurance Corporation of Africa
Ltd Case No 96/2003, heard 9 March 2004, delivered 25 March 2004 .......... 187
Michau v Maize Board 2003 (6) SA 459 (SCA) ..................................................... 193
Microcoutsis v Swart 1949 (3) SA 715 (A) ............................................................. 287
Midland Silicones Ltd v Scrutton Ltd [1962] AC 446 .......................................... 204
Miller v Miller 1965 (4) SA 458 (C) ....................................................................... 173
Miller v Spamer 1948 (3) SA 772 (C) .................................................................... 256
Millman v Klein 1986 (1) SA 465 (C) ...................................................................... 83
Minister of Justice, Ex parte 1978 (2) SA 572 (A) ................................................. 355
Mondorp Eiendomsagentskap (Edms) Bpk v Kemp en De Beer

1979 (4) SA 74 (A) ............................................................................................. 213
Montgomery Litho Ltd v Maxwell 2000 SC 56 ..................................................... 118
Monzali v Smith 1929 AD 382 ....................................................................... 128, 132
Moodley v Reddy 1985 (1) SA 76 (D) .................................................................... 295
Mort NO v Henry Shields-Chia 2001 (1) SA 464 (C) ....................................... 62–63
Mpakathi v Kghotso 2003 (3) SA 429 (W) ............................................. 208, 213, 225
Mumford v Bank of Scotland; Smith v Bank of Scotland 1996 SLT 392 ...... 172, 173
Murray v Dunbarton County Council 1935 SLT 39 .............................................. 263
Myers v Abrahamson 1952 (3) SA 121 (C) ............................................................ 258
NBS Bank Ltd v Cape Produce Co (Pty) Ltd 2002 (1)

SA 396 (SCA) ..................................................................................... 258, 259, 269
Nash Dredging (UK) Ltd v Kestrel Marine Ltd 1987 SLT 67 ...................... 353, 354
Natal Trading & Milling Co Ltd v Inglis 1925 TPD 724 ............................... 144, 150
National Bank of Canada v Soucisse [1981] 2 SCR 339 .......................................... 53
National Bank of South Africa v Graaf (1904) 2 SC 457 ....................................... 346
National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4)
SA 151 (T) .......................................................................................... 258, 259, 269
Naude v Malcolm (1902) 19 SC 482 ........................................................................ 84
Navigator (MV) 2004 (5) SA 10 (CPD) .................................................................. 187
New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd
[1975] AC 154 .................................................................................................... 103
Ngwenya v Natalspruit Bantu School Board 1965 (1) SA 692 (W) ...................... 258
Nicholas v Allstate Insurance Co 739 So 2d 830 (1999) ......................................... 51
Nine Hundred Umgeni Road (Pty) Ltd v Bali 1986 (1) SA 1 (A) ......................... 215
Nisshin Shipping Co Ltd v Cleaves & Co Ltd [2004] 1 Lloyd’s Rep 38 ....... 212, 213
Norden v Rennie (1879) Buch 155 ................................................................ 251, 255
Nordenfelt v Maxim Nordenfelt [1894] AC 535 ................................................... 264
Nordis Construction Co (Pty) Ltd v Theron Burke & Isaac 1972 (2)
SA 535 (D & CLD) ............................................................................................ 215
Novick v Benjamin 1972 (2) SA 842 (A) ................................................................ 288
OTM Ltd v Hydranautics [1981] 2 Lloyd’s Rep 211 ..................................... 100, 119
O’Leary v Harbord (1888) 5 HCG 1 ...................................................................... 146
Oatarian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) .............................. 284
Ogilvie Builders Ltd v City of Glasgow District Council 1995 SLT 15 ................ 358
Pagase, The [1981] 1 Lloyd’s Rep 175 ................................................................... 274

Parsons (H) (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] QB 791 ..... 274, 275
Paterson (A & G) Ltd v Highland Railway Co 1927 SC (HL) 32 ........................... 88
Paterson Bros v Gladstone (1891) 18 R 403 .......................................................... 132
Pauline Colliery and Developing Syndicate v Natal Land and Colonisation
Co Ltd (1902) 23 NLR 166 ............................................................................... 251
Peace v City of Edinburgh Council 1999 SLT 712 ............................................... 263
list of cases 425
Peddie v Brown (1857) 3 Macq 65 ......................................................................... 215

Pickard v Sears (1837) 6 Ad & El 469 .................................................................... 128
Pickering v Busk (1812) 15 East 38 ....................................................................... 128
Pienaar v Fortuin 1977 (4) SA 428 (T) ................................................................... 295
Pienaar v Van Lill 1928 CPD 299 .......................................................................... 256
Pieterse v Shrosbree 2005 (1) SA 309 (SCA) ................................................. 208, 212
Pioneer Container, The [1994] 2 AC 324 .............................................................. 205
Port Sudan Cotton Co v Govindaswamy Chettiar & Sons [1977]
2 Lloyd’s Rep 5 ................................................................................................... 101
Precis 521 plc v William M Mercer Ltd [2005] EWCA Civ 114 .......................... 216
Preller v Jordaan 1956 (1) SA 483 (A) ............................................................ 158, 163
Prenn v Simmonds [1971] 1 WLR 1381 ................................................ 183, 189, 200
Pretoria East Builders CC v Basson 2004 (6) SA 15 (SCA) .......................... 255, 256
Project Fishing International v CEPO Ltd 2002 SC 534 ...................................... 186
Quinn and Co Ltd v Witwatersrand Military Institute 1953 (1)

SA 155 (T) .......................................................................................... 128, 131, 132
R v Immigration Officer at Prague Airport, ex parte European Roma

Rights Centre [2004] UKHL 55, [2005] 2 WLR 1 ............................... 48, 49, 122
R v Lambie [1981] 2 All ER 776 (HL) .................................................................. 235
R v Milne and Erleigh (7) 1951 (1) SA 791 (AD) .................................. 253, 256, 257
Rama Corporation v Proved Tin and General Investments Ltd [1952]
2 QB 147 ............................................................................................................ 127
Ramazotti v Bowring (1859) 7 CBNS 851 ............................................................. 147
Rampathy v Krumm 1978 (4) SA 935 (D) ............................................................. 255
Ramsay v Brand (1895) 25 R 1212 ......................................................................... 302
Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG Construction
(City (Pty) Ltd 1984 (3) SA 861 (W) ......................................................... 259, 260
Rane Investments Trust v Commissioner, South African Revenue Service
2003 (6) SA 332 (SCA) .............................................................................. 189, 193
Reaction Molding Techniques Inc v General Electric Co, DC Pa 1984,
588 F Supp 1280 ................................................................................................ 112
Reed NO v Sager’s Motors (Pty) Ltd 1970 (1) SA 521 (RAD) .............................. 131
Reid v Lord Ruthven (1918) 55 SLR 616 .............................................................. 243
Reliance Agencies (Pty) Ltd v Patel 1946 CPD 463 ............................................. 241
Retail Parks Investments Ltd v The Royal Bank of Scotland plc (No 2)
1996 SC 227 ....................................................................................................... 261
Reuter v Yates [1904] TS 855 ................................................................................. 345
Ries v Boland Bank PKS Ltd 2000 (4) SA 955 (C) ................................................ 214
Rissik v Pretoria Municipal Council 1907 TS 1024 ............................................... 255
Ritchie (J & H) Ltd v Lloyd Ltd 2005 SLT 64 ...................................................... 291
Roberts Construction Co Ltd v Verhoef 1952 (2) SA 300 (W) ............................. 258
Robertson Group (Construction) Ltd v Amey-Miller (Edinburgh)
Joint Venture [2005] CSOH 60 ........................................................................... 60
Rodger (Builders) Ltd v Fawdry 1950 SC 483 ................................................ 57, 287

Rogaly v Weingartz 1954 (3) SA 791 (D) ............................................................... 254
Rogers v Durban Corporation 1950 (1) SA 65 (D) ............................................... 258
Roofcare Ltd v Gillies 1984 SLT (Sh Ct) 8 ...................................... 103–05, 106, 109
Roto-Lith Ltd v F P Bartlett & Co, CA Mass 1962, 297 F 2d 497 ....................... 112
Royal Bank of Scotland v Etridge (No 2) [2002]
2 AC 773 ........................................................................... 32, 56, 62, 168, 170, 172
Ruggier (George) and Co v Brook 1966 (1) SA 17 (N) ......................................... 208
Rutterford Ltd v Allied Breweries Ltd 1990 SLT 249 .................................. 109, 116
S v Henckert 1981 (3) SA 445 (A) ...................................................................... 83, 85

Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W) .................................. 212, 213
Salaried Staff London Loan Co Ltd v Swears and Wells Ltd 1985 SC 189 ......... 262
Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5)
SA 73 (C) .................................................................................... 251, 258, 260, 269
Sasfin v Beukes 1989 (1) SA 1 (A) .................................................................... 65, 164
Schierhout v Minister of Justice 1926 AD 99 ................................................ 251, 258
Schneider and London v Chapman 1917 TPD 497 .............................................. 231
Schuurman v Davey 1908 TS 664 .......................................................................... 295
Scott, falsely called Sebright v Sebright (1886) 12 PD 21 .................................... 155
Scott Lithgow Ltd v GEC Electrical Projects Ltd 1989 SC 412 .......................... 221
Scottish Power v Kvaerner Construction 1999 SLT 721 ......................................... 67
Seef Commercial and Industrial Properties (Pty) Ltd v Silberman
2001 (3) SA 952 (SCA) ................................................................................ 83, 107
Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A) .............................. 344, 355
Seniors Service (Pty) Ltd v Nyoni 1987 (2) SA 762 (ZSC).................................... 131
Sentrale Ko-op Graanmaatskappy Bpk (SA) v Shifren 1964 (4) SA 760 (A) .... 63, 64
Setlogelo v Setlogelo 1914 AD 221 ........................................................................ 253
Shakinovsky v Lawson & Smulowitz 1904 TS 326 ................................ 253, 255, 256
Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A) ................... 272, 273
Shaw v Burger 1994 (1) SA 524 (C) ....................................................................... 241
Shelagatha Properties Investments CC v Kellywood Homes (Pty) Ltd
1995 (3) SA 179 (A) ........................................................................................... 295
Shill v Milner 1937 AD 101 ............................................................................ 251, 255
Shogun Finance Ltd v Hudson [2004] 1 AC 919 .................................................. 122
Shoprite Checkers (Pty) Ltd v Jardim 2004 (1) SA 502 (O) ................................. 157
Sibbald v Dakota Motors 1956 (3) SA 203 (T) ...................................................... 232
Simpson v Eggington (1855) 10 Ex 845 (156 ER 683) .......................................... 244
Singh v McCarthy Retail Ltd (t/a McIntosh Motors) 2000 (4) SA 796 (SCA) ..... 285
Smeiman v Volkersz 1954 (4) SA 170 (C) ................................................................ 83
Smith v Bank of Scotland (1829) 7 S 244 ................................................................. 57
Smith v Bank of Scotland 1997 SC (HL) 111 ........................ 56, 62, 70, 72, 167, 172
Smith v Cox [1940] 2 KB 558 ................................................................................. 244
Smith v Gentle (1844) 6 D 1164 ............................................................................ 243
Smith v Hughes (1871) LR 6 QB 597 ............................................................ 108, 187
list of cases 427
South African Forestry Co Ltd v York Timbers Ltd 2005 (3)

SA 323 (SCA) ........................................................................................... 65–67, 92
Southernport Developments (Pty) Ltd v Transnet Ltd 2005 (2)
SA 202 (SCA) ....................................................................................... 68, 259, 260
Spencer v Gostelow 1920 AD 617 ......................................................................... 301
Spies v Lombard 1950 (3) SA 469 (A) .................................................................... 285
Standard Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd
(In liquidation) 1998 (1) SA 811 (SCA) ............................................ 344, 349, 350
Standard Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd
1995 (4) SA 510 (C) ........................................................................................... 343
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4)
SA 747 (A) .......................................................................................................... 356
Steel v Young 1907 SC 360 ..................................................................................... 303
Stevenson v McLean (1880) 5 QBD 346 ................................................................. 82
Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) ......................... 281, 288
Stocken v Collen (1841) 7 Mee and Wels 515 ......................................................... 81
Strathclyde Regional Council v Border Engineering Contractors Ltd 1998
SLT 175 .............................................................................................................. 292
Street v Dublin 1961 (2) SA 4 (W) ......................................................................... 288
Sunshine Records (Pty) Ltd v Frohling 1990 (4) SA 782 (A)................................ 254
Sutton & Co v Ciceri (1890) 17 R (HL) 40; (1890) 15 AC 144 .................... 179, 187
Swain v The Law Society [1983] 1 AC 598 ............................................................ 207
Symon v Brecker 1904 TS 745 ............................................................................... 147
Talacchi v The Master 1997 (1) SA 702 (T) ................................................... 144, 145
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) .................. 256, 283
Tay Valley Joinery Ltd v CF Financial Services Ltd 1987 SLT 207 ...................... 323
Taylor v Hoddard (1886) 2 SAR 78 ........................................................................ 167
Tel Peda Investigation Bureau (Pty) Ltd v Van Zyl 1965 (4) SA 475 (E) ......... 83, 85
Theron v Africa 10 SC 246 ..................................................................................... 302
Thompson v Pullinger (1894) 1 OR 298 ........................................................ 256, 257
Thomson v Davenport (1829) 9 B & C 78 ............................................................. 146
Thomson v James (1855) 18 D 1 ...................................................... 80, 81, 82, 87, 90
Thomson v Thomas Muir (Waste Management) Ltd 1995 SLT 403 ...................... 67
Thoroughbred Breeders’ Association v Price Waterhouse
2001 (4) SA 551 (SCA) ...................................................................... 273, 274, 278
Tinnevelley Sugar Refining Co Ltd v Mirrlees, Watson and Yaryan Co Ltd
(1894) 21 R 1009 ........................................................................................ 357, 358
Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A) ........................................ 163
Total South Africa (Pty) Ltd v Bekker 1992 (1) SA 617 (A) .................................. 212
Trade Development Bank v David W Haig (Bellshill) Ltd 1983 SLT 510 ....... 56, 57
Tradesmen’s Benefit Society v Du Preez (1887) 5 SC 269 ........... 204, 205, 206, 208
Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA) ................... 67
Transnet Ltd v Sechaba Photoscan (Pty) Ltd 2005 (1) SA 299 (SCA) .................... 68
Trever Investments v Friedhelm 1982 (1) SA 7 (A) .............................................. 226
Trustee Savings Bank v Balloch 1983 SLT 240 ...................................................... 171

Tucker’s Land and Development Corporation (Pty) Ltd v Hovis 1980 (1)
SA 645 (A) .......................................................................................................... 288
Turnbull v McLean & Co (1874) 1 R 730 .............................................................. 142
Tweddle v Atkinson (1861) 1 B & S 393 ................................................................ 203
US Industries Inc v Semco Manufacturing Inc 1977 CA 8 Mo,

562 Mo 2d 1061 ................................................................................................. 112
Uitenhage Transitional Local Council v South African Revenue Service
2004 (1) SA 292 (SCA) ...................................................................................... 187
Uni-Erections v Continental Engineering Co Ltd 1981 (1) SA 241 (W) ............. 301
Union Eagle Ltd v Golden Achievement Ltd [1997] AC 514 ................................ 58
Uniroyal Ltd v Miller & Co Ltd
1985 SLT 101 ............................................... 99, 100, 105, 106, 109, 118, 119, 121
Unitrans Freight (Pty) Ltd v Santam Ltd 2004 (6) SA 21 (SCA) .......................... 212
Universal Stores Ltd v OK Bazaars (1929) Ltd 1973 (4) SA 747 (A) .................... 131
Universe Tankships Inc of Monrovia v International Transport
Workers’ Federation, The Universe Sentinel [1983] 1 AC 366 ....................... 154
Van den Berg and Kie Rekenkundige Beamptes v Boomprops 1028 BK

1999 (1) SA 780 (T) ........................................................................................... 157
Van der Planck v Otto 1912 AD 353 ...................................................................... 216
Van der Westhuizen v Velenski (1898) 14 SC 237 ......................................... 251, 255
Van Elmbt v Feierabend HR 29 May 1964, NJ 1965, 104, HR
27 March 1992, NJ 1992, 377 ............................................................................ 170
Ver Elst v Sabena Belgian World Airlines 1983 (3) SA 637 (A) ............................ 287
Victoria Falls & Transvaal Power Co Ltd v Consolidated Langlaagte Mines
Ltd 1915 AD 1 ................................................................................................... 272
Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949]
2 KB 528 (CA) ................................................................................... 273, 274, 275
Visser v Neethling 1921 CPD 176 .......................................................................... 251
Vlasiu v President of the Republic of Namibia 1994 R 332 (LC) ......................... 157
Wade v Waldon 1909 SC 571 ................................................................................. 284

Walford v Miles [1992] 2 AC 128 ....................................................................... 45, 59
Walker v Milne (1823) 2 S 379 ................................................................................. 60
Walker’s Fruit Farms Ltd v Sumner 1930 TPD 394 ............................................. 297
Ward v Barrett NO 1963 (2) SA 546 (A) ................................................................ 255
Waring v Favenck (1807) 1 Camp 85 ..................................................................... 150
Warricker v Liberty Life Association of Africa Ltd 2003 (6) SA 272 (W) ............ 208
Watkin v Watson-Smith, The Times, 3 July 1986 .................................................. 163
Watson v Shankland (1871) 10 M 142 ................................................................... 302
Wells v SA Alumenite Co 1927 AD 69 ................................................................... 251
Welsh Development Agency v Export Finance Co Ltd [1992] BCLC 148 ......... 140
Wessels v De Jager 2000 (4) SA 924 (SCA) ........................................................... 210
list of cases 429
Westdeutsche Landesbank Girozentrale v Islington London Borough Council

[1996] AC 669 .................................................................................................... 333
Wester Moffat Colliery Co Ltd v A Jeffrey & Co 1911 SC 346 ............................ 139
Western Bank Ltd v Registrar of Financial Institutions 1975 (4) SA 37 (T) ........ 235
Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986 (2) SA 555 (A) ............................................................................................. 83
Wheeldon v Moldenhauer 1910 EDL 97 ...................................................... 255, 256
White & Carter (Councils) Ltd v McGregor (1962) SC (HL) 1 ........................... 288
Whitson v Neilson & Co (1828) 6 S 579 .................................................................. 57
Whitworth Street Estates (Manchester) Ltd v James Miller & Partners Ltd
[1970] AC 583 .................................................................................................... 192
Wickman Tools Ltd v Schuler AG [1974] AC 235 ......................................... 188, 192
Wimbledon Lodge (Pty) Ltd v Gore 2003 (5) SA 315 (SCA) ....................... 212, 215
Wolf and Wolf v Forfar Potato Co 1984 SLT 100 .......................................... 100, 109
Wolmer v Rees 1935 TPD 319 ................................................................................. 85
Woodar Investment Development Ltd v Wimpey Construction (UK) Ltd
[1980] 1 WLR 277 ............................................................................................. 204
Yates v Dalton 1938 EDL 177 .................................................................................. 85

Index
The Index is arranged letter by letter. References are to page numbers. References to
footnotes are in the form of page number followed by ‘n’: 36n refers to a footnote on
page 36. Names are indexed if they are discussed or quoted in the text.
Abtretungsmechanismus, 308 third party interests, 125

acceptance see offer and acceptance undisclosed principal see undisclosed
Ackner, Lord, 45 principal
actiones iudicia bonae fidei, 270 words or conduct, 131–2
actiones stricti iuris, 270 agere non valenti non currit praescriptio,
adiectus solutionis causa, 213 15
agency Alloway, Lord, 57
apparent authority, 124, 125–6 American Law Institute, Restatement of
causation, 133 the law on contracts, 6, 180
clarification of types of contract, 139– anatocism, 332, 333, 337, 365
41 annual capitalisation of interest, 332
commission agency, 139 Aristotle, 340
confirmation, 134, 135 assignment
direct action, 124, 139–43 assignee and competing claimants,
election, 144–5 316–18
estoppel, 129–31 assignee and debtor, 313–15
fundamental non-performance, 141, assignor and assignee, effects of
142 assignment, 318–19
generally, 124–5, 150 bankruptcy of assignor, 316–17
good faith, 132 beneficial ownership, 329
indirect representation, 139 cessionary act, 310–11, 328
insolvency, 141 competing claimant, 316
intermediary, 139 concept, 312–13
loss, 133–4 confidential, 321–2
material breach, 142, 143 development, 329–30
misrepresentation, 125 double assignment, 317–18
notice requirement, 134–5, 143–8 entitlement and transfer, 318–19
PECL, 129–35, 150 factoring arrangement, 322–3
performance to wrong party,145–7 first-to-notify rule, 316, 317, 324
ratification, 134, 135 generally, 307–10
reasonableness, 132 immediate effects: assignor and
reliance by third party, 132–3 assignee, 318–19
Scots law, 128–9, 138–9 inchoate transfer, 328
South African law, 126–8, 137–8 intimation, 322–3
430
index 431
invoice discounting, 322, 323, 324 first shot rule, 104, 109, 110, 111, 112,
knowledge of, 314 113, 117, 118, 120, 121
meaning, 307 holistic approach, 101
multiple or global, 321–6 last shot theory, 102, 109, 110, 113,
nemo dat rule, 318, 324 117, 121
notification, 313, 316, 317, 320–1, 322, material contract terms, 103, 106
323, 324–5 objectivity, 102
obligationary aspect, 313–15 orthodox approach, 102, 109, 110, 113,
payment instruction, 320, 321, 322 117, 121
PECL, 308, 309–10, 313–19, 321, PECL, 119–22
322–30 PICC, 116–19
personal rights, 326–7, 329 qualified acceptance, 100
PICC, 320–1 Scots law, 103–7, 109–11, 121, 122
priorities, 316–18, 320–1, 323, 324–5 South African approach, 107–9
proprietary aspects, 316–18 UCC, 112–13
publicity, 324, 325, 326 Bavaria, 19
public registry, 324 Beale, H, 47–8, 71, 72
Scots law, 310–12, 322–3, 328–9 Bell, G J, 57, 139, 146, 243, 247
South African law, 310–12, 328–9 BGB
substitution, 314 drafting, 11
theoretical nature, 326–9 interest rates, 345
third parties, 315, 316, 319–20 Bingham, Lord, 45, 181, 183
timing, 316–17, 323 Bologna, 8, 9
transfer agreement, 310, 311 bona fides, 17, 57, 58
transfer construction, 326–9 boni mores, 14
transfer of right, 311, 312, 318–19, Botha, J A, 254
326–9 Brand, F, (JA), 49, 66–7
trust, use of, 323, 329 breach of contract
UCC, 330 anticipatory, 283, 287–9, 291, 306
UN Convention on Assignment of fundamental, 282–7, 306
Receivables in International Trade, generally, 27–8
319–21, 324 interest as a form of special damages,
utility of regime, 321–6 357–9, 363–4
Auslobung, 31 material, 282–7, 289, 306
Austria, 11, 19, 25, 121 tender to cure see tender to cure
autonomous harmonisation of contract termination see termination for breach
law, 40 of contract
Avant-projet, 5, 6, 7 see also specific implement; specific
performance
Bankton, Lord, 57, 242 Bridge, L J, 102
Bartolus, 15 Bridge, M, 46, 303
battle of forms British Columbia Law Reform
CISG, 113–16 Commission, 361
classical or orthodox approach, 102, 109 Brodie, D, 49
clause paramount, 104, 109, 110, 111, business contract, 99n
112, 113, 117, 118, 120, 121
counter-offer, 100–3, 105 Canada
English law, 100–3 British Columbia Law Reform
EU, lack of uniform approach, 121 Commission, 361
432 index
duty of care, 54 Christie, R H, 142

Quebec, 52–4, 69, 72 Cicero, 337
Supreme Court, 54 CISG (United Nations Convention on
cancellation, 281n Contracts for the International Sale
capitalisation of Goods)
history of rules, 336–41 battle of forms, 113–16
‘just price’, 339 European legal tradition, 26–8
legal rules, 332–3 interpretation, 201–2
policy, 338–41 postal rule, 83
capitalisation of interest receipt rule, 83
annual, 332 specific performance, 250
annual rests, 365 Clarke, Lord, 59–60
calculation, 364–5 clausula rebus sic stantibus, 20–1
commercial realities, 360–1 Clive, E, 48, 292, 304
compound interest, 343–4 Clyde, Lord, 56, 57
consumer debts, 362–3 Cockrell, A, 65, 252, 287
contract or trade usage provision, 343–4 codification of contract law, 41–2, 69
contractual provisions, 363 Cohen, N, 55
current accounts, 344 Commercial Agents Directive, 68
damages and debts distinction, 361–2 Commission of European Contract Law, 4
economic realities, 360–1 Common Frame of Reference, 71
enforceability of agreements, 343–4 common intention of parties, 178, 181–2,
extortionate rates, 344–6 185, 197–8
frequency, 365, 366 comparative legislation, 36–7
in duplum rule, South Africa, 348–50 compound interest
intervals for capitalisation, 365, 366 meaning, 332
meaning, 332 Roman Law, 337
moneylending transaction, definition, condictio sine causa, 242
346 condition, fulfilment of, 24
monthly rests, 365 consensus in idem, 74, 140
mora interest, 351–7 consideration, doctrine of valuable, 206
reform, Scotland and South Africa, consumer debt, 362–3
359–60, 365–6 Consumer Sales Directive, 26
restriction, problems of, 360–1 contemplation principle, 272, 275, 276
Scots law, reform, 359–60, 365–6 contra bonos mores, 165, 173, 173
small loans, South Africa, 347–8 contract
South African law, 342, 346–50, 359– acceptance, 28
60, 365–6 breach, 27–8
unconscionability standards, 344–6 change of circumstances, 20–1
uniformity, 359–60, 365–6 determination of price, 21–2
Usury Act in South Africa, 342, 346–7, direct representation, 19–20
355–6, 360 locus contractus, 79
casus belli, 98–9 negotiations, Supreme Court of
Centlivres, C J, 336 Canada, 54
certum modum usurarum, 345 non-performance, 24
certum pretium requirement, 22 penalty provisions, 22–3, 122
cessionary act, 310–11 renegotiation, 20–1
cheque payment, 231–2, 232–3, 234 third parties, in favour of, 19
Christian Church, 339–40, 341 validity, generally, 151–2
index 433
contract formation, 27, 28, 29 damages

contract formation inter absentes capitalisation and interest as, 357–9,
allocation of risk, 92–5 363–4
declaration theory, 79 culpa in contrahendo, based on, 24
information theory, 79 interest on, 356–7, 363–4
expedition theory, 79 latent defects, 26
expedition theory in postal contracts, remoteness see special damages
84–90 special 357–9, 363–4; see also special
information theory, 80, 83, 84 damages
intention, 80n Dante, 340
irrevocability issue, 88n Davidson J, 253
late acceptance, 94 Dawson, J P, 152, 160
objective approach, 95 de Afflictis, M, 32
PECL, 91–7 debt, consumer 362–3
Post Office as agent, 87 Denning, Lord, 101, 102, 171, 237
postal contracts, South Africa, 84–6 determination of price, 21–2, 40
postal rule, 75, 81–3 de Villiers, Lord, 206, 231
prescription of method, 80–1, 87 de Wet, J C, 163–4, 208, 210
promise, 88n direct representation, 19–20
proof of delivery, 93 Distance Selling Directive, 68
reasonable time, 93–4 dolus, 337
reception theory, 79–80, 91–2 Dunedin, Lord President, 233, 234
retraction of offer, 82n Duress, third parties and, 171–4; see also
revocation, 80n, 88, 93 threats
Scots law, 80–3, 95–7 Dutch Civil Code, 36, 145, 162, 185, 352,
South African law, 83–6, 88n, 95–7 369; see also Netherlands
telegram, telephone, telex, 82, 85
theories, 79 economic duress, 152, 157, 175; see also
see also offer and acceptance threats
contract law English law
autonomous harmonisation, 40 battle of forms, 100–3
elements, 12–13 contract formation, 28
good faith principle in European, 70–2 illegality, 14
illegal and immoral contracts, 13–15 interpretation of contracts, 179–80,
contract terms, unfair, contrary to public 181–3, 186, 187
policy, 165 PECL, use of, 39
contra proferentem rule, 15, 178 repudiation, 294
contributory negligence, 24 specific performance, 252, 256, 257,
convention principle, 273, 278, 279 258, 261, 263, 266, 268
Corbett, J A, 273 termination for breach, 281
courts of law, PECL references, 37–8 test of remoteness, 274
Craighill, Lord, 359 third party contracts, 207, 215, 216–17,
credit agreements, 165–6 220, 224, 225, 227
credit card payment, 235–6, 239, 240 English Law Commission
Crépeau, P, 52, 53 Compound Interest, 338, 362, 363
culpa in contrahendo, 24, 51, 54, 60, 61, Contract Code, 5, 69
67, 69, 72 Limitation of Actions, 40
cure, tender to, 289–91 Pre-judgment Interest on Debts and
Curlewis, J A, 272 Damages, 359, 360,361, 362, 364, 365
434 index
Unfair Terms in Contracts, 99n PECL definition, 284

enrichment claim, 241, 242, 247 see also termination for breach of
estoppel, 127–8, 129–31, 227 contract
European Code of Contract, 68
European Constitution, 73 Gandolfi, G, 5; see also Pavia Academy
European Convention on Human Rights, Geneva Convention on Agency in the
73 International Sale of Goods, 20
European Sales Law, 8 Germany
Evans-Jones, R, 303 battle of forms, 121
exceptio non adimpleti contractus, 28 convergence and tradition, 18–24
excessive benefit or unfair advantage courts of law, 37
boundaries: undue influence and force generally, 11–12, 14, 16, 34, 35
and fear, 170–1; see also threats international legal development, 25, 26
Civil Law, 32–3, 58, 160–2 laesio enormis and usury, 160–2, 168
Common Law, 162–3 legal scholarship, 39
generally, 158 penalties, 22
‘grossly unfair’, 170 prescription, 25, 26, 37
laesio enormis, 160–2, 163, 164, 165 presumptions, 173
legality requirement, 168 private autonomy of individuals, 174
mixed systems, in, 158–9, 163–6 reasonable fear, 155
third party, 171–4 set-off, 29–30
unconscionability, 162–3, 167–8, 169, 170 undue influence, 32
undue influence, 32–3, 58, 158–71, Gestaltungsrecht, 327
162–3, 166, 168–9 Glenlee, Lord, 57
unequal bargaining, 164, 165, 166–7 Gloag, W M, 243
usury, 16 Glossators, 19, 30, 155
weakness, cases of, 159–71 good faith
excused non-performance, 281 codified mixed systems, 49–55, 69
ex nudo pacto non oritur actio, 18 European contract law, in, 70–2
external relationship, regulation of, 20 excluder, as, 70
extinctive prescription, 25–6; see also generally, 17–18, 40
prescription House of Lords, 56, 57, 58
human rights and, 73
Fages, B, 40 Israel, 54–5, 69
fair dealing, meaning, 44; see also good Louisiana, 49–52, 69
faith and fair dealing meaning, 44
force and fear see threats mixed legal systems, 48–9
France PECL, 38, 48
autonomous convergence, 40 public policy and, 72–3
boni mores, 14 Quebec, 52–4, 69, 72
convergence and tradition, 18, 19, 21–2 Scots law, 49, 55–61, 70, 72
determination of price, 21–2 Scottish Parliament building case, 60–1
generally, 11 South African law, 49, 62–8, 72
interpretation, 178, 179, 184 third parties, 171n, 172
penalties, 23 uncodified mixed systems, 55–68, 69
prescriptive period, 25 good faith and fair dealing
set-off, 30 application, 44
fundamental breach arguments against, 45–6
generally, 282–7, 306 community standards, 44, 46
index 435
consistency, 47–8 interdict, 260, 261, 263–4

duty, 43 interest
implied terms, 44–5 calculation, 334
interpretation of contract, in, 44–5, Christian Church and, 339–40, 341
202 current policy, 342–3
negotiations, in, 44, 45–6 damages, as, 357–9, 363–4
non-performance remedies, 45, 46 elements, 334
objective standard, 43–4 function, 335–6
performance, 45, 46–7 history of regulation, Roman law, 336–8
PICC, 68 Islam, 340
regulation of contract provisions, 45 literature, in, 340–1
UCC, 46 meaning, 334
Greece, 20, 23 philosophy, in, 340–1
Gretton, G, 311 regulation, 341–3
Grosskopf JA, 241–2 religious views on, 339–40, 341
Grotius, H, 31, 79, 208 restrictions on recovery, 337, 338
Grundregeln, 308 Vedic law, 340
interest ex contractu, 336
Hadley v Baxendale case, 270, 272, 275, interest ex mora, 336
276, 277, 278, 279, 358 interest on arrears of interest, 333
harmonisation of contract law, 40 interest rate, 334, 335
Hefer, J A, 252, 257 determination, 335
Hesselink, M, 70, 329 interpretation of contracts
Hoffmann, Lord, 182–3, 186 admissibility of extrinsic evidence,
Holyrood Inquiry, 61n 188–9
homo constantissimus, 155 agreement on meaning, 198–9
Honoré, A M, 171 ambiguity, 188–9
Hope of Craighead, Lord, 48, 49 American Restatement of the Law, 180
Huber, 79 assessment of PECL rules, 197–202
human rights, 73 Civilian influences, 178–9
Hutchison, D, 62, 63, 292 Civilian systems compared, 184–5
‘clear and precise terms’, 184
id quod interest, 271 common intention of parties, 178,
illegality, 168 181–2, 185, 197–8
Imperio Rationis, 33 conduct of parties, 178
impossibility, 262, 266–7, 299–302; see considerations taken into account,
also performance; restitution 193–4
India, religious views on interest and context, 186, 187
usury, 340 English law, 179–80, 181–3, 186, 187
in duplum rule good faith, 178, 179, 185
application, 349–50, 366 good faith and fair dealing, 202
capitalisation, 349–50 implied terms, 194
effect, 348 meaning, agreement on unusual, 186,
rationale, 348–9 188
Inglis, L J-C, 343 negotiations, 189–91, 199–200
Innes, J A, 255, 256, 272 objective starting point, 196–7
in pari turpitudine, 16 PECL rules, 177–8, 185, 194–202
inter absentes see contract formation inter policy choices, 194–7
absentes preliminary negotiations, 178, 183
436 index
prior communings, 189, 190 lex non cogit ad impossibilia, 255, 262
rectification, 195–6 lex Non Dubium, 13
reliance interests of third parties, 201 limitation of actions, 40
rules of evidence, 195 literature
Scots law, 186–8, 189–91, 192 interest and usury in, 340–1
South African law, 187–8, 191, 192–3 legal, 34
starting point, 196–7 Litvinoff, S, 50–1
subjective starting point, 196–7 Louisiana, good faith, 49–52, 69
subsequent conduct, 192–3, 199–200
substantive rules, 195 McBryde, W W, 55–6, 80n, 82n, 165
third parties, reliance interests, 201 McKendrick, E, 172
true intention of parties, 186 MacQueen, H L, 233–4, 242, 243, 244–5,
UN Convention on International Sale 263, 276, 292
of Goods, 180 mashonisas, 347
unified approach, 196–7 Max Planck Institute, Hamburg, 39
unilateral juridical acts, 200–1 metus reverentialis, 32, 173
Ireland, 29 Molinaeus, 271
Islam, views on interest, 340 mora, meaning, 342, 343, 351
Israel, good faith, 54–5, 69 mora interest
Italy, Codice Civile, 5, 14, 20, 184, 178 additional finance charges, 355–6
ius commune capitalisation, 351–5
background to PECL, as, 33–4, 36 entitlement, 351
codification, 10–12 generally, 336
European legal tradition, as, 8–19 New Zealand Law Commission, 352
ius quaesitum tertio, 209, 218, 222, 223 PECL, 351–2, 355
Scots law, 353–4
Jakobs, H H, 11, 30 Scottish Law Commission, 352
Jhering, R von, 18, 20 South African law, 353, 354, 355–6
Joubert, D J, 252, 253, 349 mutuum, 339
Justinian, 9, 23, 271, 341, 351
negative obligation, 252, 253–4
Kames, Lord, 57 negotiations
Kerr, A J, 150 good faith and fair dealing in, 45–6
Kerridge, E, 340 prior to contract formation, 76
Keynes, J M, 334 negotiorum gestio, 241
Kötz, H, 70–1 nemo dat rule, 318, 324, 328
Kotzé, J P, 84–5 Netherlands
abuse of circumstances, 162, 169, 170
Laband, 20 battle of forms, 121
laesio enormis doctrine, 160–2, 163, 164, generally, 11, 14, 36
165, 168 PECL references, 38, 39
Lando Commission, 4, 7, 197 presumptions, 173
language, 6, 34 representation, 20
latent defects, 337 set-off, 23
Lawton, L J, 102 see also Dutch Civil Code
legal scholarship, PECL and, 38–9 New Zealand Law Commission, Aspects
legal training, 40–1 of Damages: Awards of Interest on
legislation, comparative, 36–7 Money Claims, 352, 360–1
letter of credit, 236–7, 239 Nienaber, J A, 273, 274, 294, 311
index 437
non-performance payment
definition, 282n cash, 231, 232n
generally, 27 cheque, 231–2, 239
good faith and fair dealing, 45, 46–7 cheque as conditional payment, 232–3,
termination for, 24, 298, 305 234
unitary concept, 282–3, 306 cheque as novation, 233, 234
see also performance; termination for conditional, 232–3, 234, 236, 237
breach of contract conditionality of acceptance of
Norway, 12 substituted performance, 239, 240
novation, 233, 234, 237 credit cards, 235–6, 239, 240
numerus clausus, 256 form and manner generally, 230
legal tender, 231, 240
obligation letter of credit, 236–7, 239
assignment, 313–15 methods, 231
imprecise, 259 ‘ordinary course of business’, 238
monetary, 263, 265, 268 PECL principles, 238–9
negative, 252, 253–4 principles from South African and
non-monetary, 252, 254–5, 265–7, 268 Scots law, 237–8
Odersky, W, 37 ‘promise to pay’, 239
offer and acceptance promissory note, 231, 239
assent, 78 wrongful withholding, 351
burden of proof, 77–8 see also capitalisation of interest
condition not fulfilled, 78n payment by third party
consideration, 76 assent of debtor, with, 246
counter-offer, 78 bank as instrument, 241–2, 245
dispatch rule, 75 enrichment claim, 241, 242, 247
display of goods, 77 generally, 240
generally, 74–5, 95–7 legitimate interest, 246
intention to be bound, 76 negotiorum gestio, 241
inter absentes contracting, 75; see also PECL comparisons, 246–8
contract formation inter absentes Pothier argument, 240–1, 242, 247
late acceptance, 94 Scots law, 242–5
mailbox rule, 75 South African law, 240–2
model, 75–8 two categories of third parties, 246
PECL, 91–5 unauthorised, 243, 244, 245, 246, 247
postal rule, 75 unauthorised cheque, 241–2, 245
reception theory, 91–5 validity, 240–1
revocation prior to acceptance, 78, 80n PECL see Principles of European
risk allocation, 92–5 Contract Law
overborne will theory, 153–4, 175 penalty provisions, 22–3, 122
peregrinatio academica, 9
pacta sunt servanda, 18, 20, 251, 260, performance
265, 269 anticipatory non-performance, 27
Papinian, 178 counter-performance, 298
partial invalidity, 16 defective, 283
Patton, L J-C, 333 impossible, 255, 262, 266–7, 268, 299–
Paulus, 154 302
Pavia Academy of European Private late, 291–2
Lawyers, 68; see also Gandolfi non-conforming, 293
438 index
non-performance, 24, 27, 45, 46–7, price

282–3, 298, 305, 306 determination, 21–2, 40
prevention, 283 ‘just price’, 339
right to withhold, 27–8 reduction, 28
specific performance see specific principal, undisclosed see undisclosed
performance principal
value higher than contract price, 300 principles, meaning, 7n
see also termination for breach of Principles of European Contract Law
contract (PECL)
personal bar, 129, 146, 292 agency, 129–35, 150
personal rights, 326–7; see also assignment, 308, 309–10, 313–19, 321,
assignment 322–30
philosophy, interest and usury in, 340–1 battle of forms, 119–22
PICC see Unidroit Principles of characteristics, 5–6
International Commercial comparative legislation and, 36–7
Contracts contract formation inter absentes,
Pitmilly, Lord, 58 91–7
Plato, 340 development of ius commune, as, 33–5
plus valere quod agitur quam quod excused non-performance, 281
simulate concipitur, 15 generally, 2–3
pollicitatio, 209 good faith, 38, 48
postal contract implied terms, 194
irrevocability issue, South Africa, interpretation of contracts, 177–8, 185,
88n 194–202
justification, 87–9 language, 6, 34
meaning, 81n legal scholarship and, 38–9
mistake, 90 legal training, 40–1
non-receipt, 89–90 mora interest, 351–2, 355
overtaking communication, 90 objective starting point, 196–7
PECL, 92 offer and acceptance, reception theory,
Post Office as agent, 87 91–5
prescription of method, 80–1, 87 origin, 4
problems, 89–90 payment, 238–9
promise, Scotland, 88n payment by third party, 246–8
reasonable reliance, 89 postal contract, 92
retraction of offer, 82n rectification, 195–6
revocation, 80n, 88 reference by courts of law, 37–8, 48
telegram, telephone, telex, 82, 85 restitution, 297–300
theories, 79 restraints of trade, 267
postal rule, 75, 81–3 rules of evidence, 195
Potgieter, J A, 137, 138 scope, 4, 194
Pothier, R J, 20, 33, 179, 240–1, 242, 247, source of legitimacy, 34–5
271, 272, 275 special damages, 276–9
Powell, R, 138 specific performance, 264–7, 268
pre-contractual negotiations, 54n, 61 starting point, 196–7
prescription, 15–16, 18, 25–6 structure, 6
presumptio simulitudinis, 308 style, 6
presumptions, 173, 174 substantive rules, 195
presumptions of impropriety, 175 tender to cure, 290–1
index 439
termination for breach of contract, Scots law, 302–4

290–1, 297–300 South African law, 298, 300–2
undisclosed principal, 139–43, 145–7, total failure of counter-performance,
148–9; see also agency 298
unified approach, 196–7 see also termination for breach of
privity of contract doctrine, 203, 204, 205, contract
206 restraints of trade
procuratio in rem suam, 326 PECL, 267
promise requirements for enforcement, 264
offer and acceptance, 88n Scots law, 263, 264
unilateral, 30–1, 209, 210 South African law, 253–4
promissory note, 231, 239 retrospectivity, 29–30
Prussia, 11, 19 Rodger, Lord President, 128–9, 134
public policy, good faith and, 73 Roman law, 9
public procurement, 60, 61 Ross, Lord, 354
purgatio morae, 294, 295 rules, meaning, 7n
qualified acceptance, 100 sale of goods, 8, 26–7; see also United

Quebec, good faith, 52–4, 69, 72 Nations Convention on Contracts
qui prior est in tempore potior est in iure, for the International Sale of Goods
256 (CISG)
Saxonian Civil Code, 19, 41
Rabel, E, 27 Scandinavia, 29
rescission, 281n Schubert, 30
regulae iuris, 15 Scotland
Reid, K, 248 agency, 128–9, 137–8
religion, interest and usury in, 339–40, assignment, 310–12, 322–3, 328–9
341 battle of forms, 103–7, 109–11, 121,
remedies for non-performance, 45, 46–7 122
remoteness of damages, 270–9; see also capitalisation of interest, 359–60, 365–6
special damages contract, 80–3, 95–7
Renaissance, 8 excused supervening impossibility of
representation performance, 281
direct, 19–20 good faith, 49, 55–61, 70, 72
indirect, 139 interpretation of contracts, 186–8,
misrepresentation, 125 189–91, 192
repudiation, 283, 284, 288–9 mora interest, 352, 353–4
retracted, 292, 294–5 payment, 237–8
resolutive condition, 234 payment by third party, 242–5
restitutio in integrum, 303 postal rule, 80–3
restitution promise, 88n
accidental destruction of property, 299, rescission, 281n
301, 303, 304–5 restitution, 302–4
criteria, 16, 301 restraints of trade, 263, 264
impossibility, 299–302 special damages, 275–6
inequitable to require, 301–2 specific performance, 260–4, 268, 269
mutual, 296–7, 298 tender to cure, 291–3, 295, 296
PECL, 297–300 termination for breach of contract,
requirement for claim, 16, 301 281, 291–3, 295, 296, 302–4
440 index
third-party contract, 209–10 irrevocability issue, 88n

undisclosed principal, 138–9; see also Law Commission, 64, 164
agency moneylending transaction, definition,
Scott, S, 328 346
Scottish Institutional Writers mora interest, 353, 354, 355–6
agency and mandate, 139 payment, 237–8
contract formation, 79–80 payment by third party, 240–2
promise, 31 public policy doctrine, 64–5
Scottish Law Commission restitution, 298, 300–2
assurance of performance, 289 restraints of trade, 253–4
Contract Code, draft, 69 small loans, 347–8
Defective Consent and Consequential special damages, 270–4, 278
Matters, 165 specific performance, 250–60, 268–9
Formation of Contract, report, 114, 116 tender to cure, 293–5, 296
Interest on Debt and Damages, 122, termination for breach of contract,
334, 335, 352, 360, 362, 363, 365, 281, 293–5, 296, 298, 300–2
366 third-party contract, 208–9, 212, 215
Interpretation in Private Law, 186n, undisclosed principal, 137–8; see also
191 agency
Penalty Clauses, 122 Usury Act, 342, 346–7, 355–6, 360
postal rule, 82–3 South African Law Commission,
restitution after termination, 302 Unreasonable Stipulations in
ultimatum, 292–3 Contracts, 164
Unfair Terms in Contracts, 99n Spain, 121, 184
Scottish Parliament building case, 60–1 special damages
security agreement, 327 capitalisation and interest as, 357–9,
set-off, 23–4, 29–30 363–4
sexually transmitted debt, 171 causation, 275, 277, 278, 279
Shakespeare, 341 conclusion of contract, 277
Shifren doctrine, 63 contemplation principle, 272, 275, 276
sine qua non test, 275 convention principle, 273, 278, 279
small business contract, 99n foreseeability, 270–2
small loans, South Africa, 347–8 foreseeability by defaulting party, 277,
South Africa 278
agency, 126–8, 137–8 generally, 278–9
assignment, 310–12, 328–9 Hadley v Baxendale decision, 270, 272,
battle of forms, 107–9 275, 276, 277, 278, 279, 358
Bill of Rights, 174 intentional non-performance, 277,
cancellation, 281n 278
capitalisation of interest, 342, 346–50, interest as, 357–9, 363–4
359–60, 365–6 liability, 277, 278
contract formation inter absentes, 83–6, ‘likely result’, 277, 278
88n, 95–7 non-performance, 277, 278
excused supervening impossibility of PECL, 276–9
performance, 281 probability, meaning, 273–4
good faith, 49, 62–8, 72 reasonable contemplation, 275
interest on unliquidated debts, 356 remoteness, 275–6, 277, 279
interpretation of contracts, 187–8, 191, restricted liability, 277
192–3 Roman law, 270–1
index 441
Scots law, 275–6 provision of services, 267

sine qua non test, 275 reasonable time limit, 267
South African law, 270–4, 278 refusal to order, 255, 257–8
test, 274 restraints of trade, 253–4, 263, 264, 267
specific implement Scots law, 260–4, 268, 269
judicial discretion, 262–3, 268 sequestration of debtor’s estate, 255
sanctions, 263–4 solus ties, 263
Scots law, 260–4 South African law, 250–60, 268–9
see also specific performance specific implement, 260–4, 268
specific performance substitute transaction, 267
agreement to negotiate a contract, 257 refusal to order, 257–8
balance of equities, 256 restraints of trade, 253–4
comparisons, 267–70 substitute transaction, 267
compliance in forma specifica, 251 undertaking not to compete, 263
damages, 250, 251, 261, 263, 265, 267 undue hardship, 257, 258, 260, 262,
defective performance, 265 268–9
dichotomy in South African law, 251–2 unenforceable, 263
employment, 258–9, 262, 269 unreasonable effort or expense, 265, 266
enforcement of negative obligation, work of a personal nature, 258–9, 262,
252, 253–4 267, 269
entitlement, 250, 251, 264–7 Stair, Viscount, 31, 79, 165
equitable discretion, 251 standard forms, 98–9
general duty over period of time, 263 Steyn, Lord, 48
generally, 27, 249, 250 stipulatio alteri, 19, 208, 212, 216, 228
impediments, onus to raise, 256 stokvels, 348
impossibility, 251, 255–6, 262, 266, 268 stopped cheque, 241–2, 245
imprecise obligations, 257, 259 Storme, M, 71, 72
imprisonment as sanction, 263–4 surety, 172–4
inequitable, 257, 258, 260, 262, 268–9 Sweden, 121
insolvency, 251, 255 Switzerland, 12, 71
interdict, 253, 254, 256, 260, 261, 263
judicial discretion, 256–7, 262–3, 268 tender to cure
lex non cogit ad impossibilia, 262, 268 conforming performance, 292
limitations, 266 defects arising in leased property, 295
monetary obligations, 253, 263, 265, 268 delay, 290, 291
negative acts, 253, 261, 263 generally, 289–91, 295–6
non-compliance, 263 late performance, 291–2
non-monetary obligations, 252, 253, lex commissoria, 295
254–5, 265–7, 268 limited rights, 290–1
onus to raise impediments, 256 non-conforming performance, 293
pacta sunt servanda principle, 251, PECL, 290–1
260, 265, 269 personal bar, 292
part performance, 265 precluded, 293–4
payment, 252, 253, 260 purgatio morae, 294, 295
PECL, 264–7, 268 remediability, 293
personal services, 257, 258–9, 262, repair or replacement, 293
267, 269 repudiation retracted, 292, 294–5
positive acts, 261 right to cure, 290–1, 293–5, 296
pretium affectionis, no, 262 Scots law, 291–3, 295, 296
442 index
South African law, 293–5, 296 ultimatum procedure, 287, 292–3, 306
time is of the essence, 290, 291 unjustified enrichment, 300, 301, 302,
ultimatum, 292–3, 306 303–4
verbal statement of intention, 290 verbal statement of intention, 290
see also termination for breach of winding-up regime, 296, 305
contract terms of the contract
termination for breach of contract ‘clear and precise’, 184
accidental destruction of property, 299, implied, 194
301, 303, 304–5 see also interpretation of contract
anticipatory breach, 283, 287–9, 291, Theodosius, Emperor, 13
306 third party
cancellation, 281n assignment, 315, 316, 319–20
conforming performance, 292 autonomy of individuals, 174
consequences, 296–305 duress, 171–4
counter-performance, 298 duties to warn and advise, 172, 174
defective performance, 283, 284 good faith, 171n, 172
defects arising in leased property, 295 interest of the surety, 172, 172, 174
delay, 283, 284, 285–6, 287, 290, 291 presumptions, 173, 174
extra-judicial way, 40 sexually transmitted debt, 171
fundamental breach, 282–7, 306 undue influence and, 171–4
generally, 40, 281–2, 305–6 third-party contract
grounds, 282–96 acceptance, 216, 217, 219, 220, 225
impossibility, 299–302 acquisition of right, 207–8
late performance, 291–2 adiectus solutionis causa, 213
lex commissoria, 295 amendment without third party
material breach, 282–7, 289, 306 consent, 216–20
mutual restitution, 296–7 automatic acquisition of rights, 205–6,
non-conforming performance, 293 209
non-performance, 282–3, 305, 306 beneficiary, change, 220
PECL, 290–1, 297–300 beneficiary, identification of, 214–15
performance, 282–3, 284, 289, 305, benefits, 207, 213–14
306 burdens, 212
personal bar, 292 cancellation due to breach of one
positive malperformance, 283, 284 party, 227
property value reduced due to non- damages claim, 223–5
performance, 298 defences, limitation of agreements on,
purgatio morae, 294, 295 228
remediability, 293 determination of reliance, 216, 217
rescission, 281n doctrine of valuable consideration and,
repudiation, 283, 284, 288–9 206
repudiation retracted, 292, 294–5 double jeopardy, 225
restitution, 299–305 duties, 212
restoration inability, 299, 300–1 enforcement, 204–7, 221–5
Scots law, 291–3, 295, 296, 302–4 estoppel, 227
South African law, 293–5, 296, 298, generally, 203–4, 228–9
300–2 immunities, 211–12
tender to cure, 289–96, 306 inference, 214
time is of the essence, 283, 284, 285–6, intention, 214
289, 290, 291 irrevocability, 218, 219, 220
index 443
ius quaesitum tertio, 209, 222, 223 unciarium fenus, 336

meaning, 203 unconscionability, 162–3, 167–8, 169, 174
notice of rejection, 210–11 undisclosed principal
performance, 212, 215, 222 clarification of types of contract, 139–
presumption, 213–14 41
privity of contract and, 203, 204, 205, commission agency, 139
206 compensation, 148
reciprocity, 211 defences, 148–50
relationship between rights and direct action, 135–43
contract, 225–8 election, 144–5
reliance, 216, 217–18, 219 fundamental non-performance, 141, 142
remedies for enforcement, 221–5 generally, 125, 135–7
renunciation, 210–11 indirect representation, 139
revocation, 218, 219, 220 insolvency, 141
rights, 212 intermediary, 139
Scots law, 209–10 material breach, 142, 143
South Africa, 208–9, 212, 215 notice requirement, 143–8
stipulatio alteri, 208, 212, 216, 228 PECL, 139–43, 145–7, 148–9
termination without third party performance to wrong party, 145–7
consent, 216–20 Scots law, 138–9
two-contract approach, 208–9, 212, set-off, 148, 149n
215, 225–6 South African law, 137–8
variation of right, 216, 220 third party’s direct action, 149–50
Thomson, J, 263, 276, 292 see also agency
threats undue influence
abstract requirement in PECL, 156–7 cases of weakness , 159–71
contra bonos mores, 157n Civilian style, 32–3
duress, 152, 153 good faith, 58
effect on victim, 152–6 mixed systems, 158–9, 166
force and fear, 152, 153 third parties and, 171–4
nature of, 156 see also excessive benefit or unfair
overborne will, 153–4 advantage
quality of fear, 152–6 unequal bargaining, 164, 165, 166–7
reasonable fear, 155–6 unfair advantage see excessive benefit or
undue influence comparison, 32 unfair advantage
unlawful, 157, 175 unfair contract terms
willed under compulsion, 154 contrary to public policy, 165–6
wrongful in itself or wrongful purpose, Law Commission report, 99n
156–7 Unfair Terms Directive, 38, 48, 68
transfer of right, 311, 312, 318–19, 326–8; Unidroit Principles of International
see also assignment Commercial Contract (PICC), 7–8,
Treitel, G, 13, 154 197
Trollip, J A, 273 assignment, 320–1
battle of forms, 116–19
UCC (Uniform Commercial Code) good faith and fair dealing, 68
assignment and, 330 fundamental breach of contract, 285–6
battle of forms, 112–13 performance, 27, 28
good faith in performance, 46 Unification of European contract law and
ultimatum procedure, 287, 292–3, 306 German law, 1999, 39
444 index
Uniform Commercial Code (UCC) International Sale of Goods, 29n

assignment and, 330 unjustified enrichment, 300, 301, 302,
battle of forms, 112–13 303–4
good faith in performance, 46 usury, 160, 162, 167, 168, 332, 333, 339,
Uniform Laws on the International Sale 340
of Goods, 27 meaning, 333–4
unilateral promise, 30–1, 209, 210 Usury Act of South Africa, 342, 346–7,
United Nations Convention on the 355–6, 360
Assignment of Receivables in usus modernus pandectarum, 9
International Trade, 29n, 319–21, utile per inutile non vidiatur, 16
324
United Nations Convention on Contracts Visser, D, 248
for the International Sale of Goods vitiated will, 154
(CISG) Voet, 79
battle of forms, 113–16 voluntas coacta tamen voluntas est, 154
European legal tradition, 26–8
interpretation, 201–2 Wales, 29
postal rule, 83 Walker, D M, 243, 263
receipt rule, 83 Wertheimer, A, 171
specific performance, 250 Wessels, J A, 272
United Nations Convention on the Windscheid, B, 11, 21, 24, 30
Formation of Contracts for the
International Sale of Goods, 27 Yuill, D, 133, 134
United Nations Convention on the
Limitation Period in the Zimmermann, R, 70, 248, 310

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European Contract Law:

Scots and South African Perspectives

Previous volumes in the series:

European Contract Law:

EDINBURGH UNIVERSITY PRESS

Edinburgh University Press Ltd

Typeset in New Caledonia by

ISBN 0 7486 2425 2 (hardback)

The right of the contributors

1 Ius Commune and the Principles of European Contract Law:

11 Termination for Breach of Contract 280

Appendix: The Principles of European Contract Law 367

offered in this volume an especial urgency and significance.1

– leaving it to the market;

– increasing the coherence of the Community acquis in contract law by

A further Communication from the Commission to the European Parliament

– Study Group on a European Civil Code (which seeks to build on

The Network Co-ordinator is Professor Dr Hans Schulte-Nölke of the

perspective of Scots and South African contract lawyers, and it is offered to

Hector L MacQueen and

eric clive is a Visiting Professor of Law in the University of Edinburgh.

Forte, Good Faith

parts I and II (2000); O Lando, E Clive, A Prüm and R Zimmermann (eds),

Part II: Other Abbreviations

AJA Acting Judge of Appeal

CILSA The Comparative and International Law Journal of

Ex Law Reports, Exchequer

PD Law Reports, Probate, Divorce and Admiralty Division

SLT (Lands Tr) Lands Tribunal Reports in Scots Law Times

(c) Change of circumstances

1 See, e.g., R Zimmermann, “Konturen eines Europäischen Vertragsrechts” (1995) Juristenzeitung

B. THE PRINCIPLES OF EUROPEAN CONTRACT LAW

(1) Scope and origin

(2) Essential characteristics

(3) Style and structure of publication

(4) Rules or principles?

Avant-projet contains a set of rules which is designed to be implemented as a

(5) The Unidroit Principles

C. THE OLD IUS COMMUNE

on the same model, lawyers began systematically to penetrate the most

generations of jurists. In the process it was subject to a process of constant

(2) Ius commune and codification

32 K Cosack, in H Planitz (ed), Die Rechtswissenschaft der Gegenwart in Selbstdarstellungen, vol I

D. THE PRINCIPLES AS A CONTEMPORARY MANIFESTATION

(1) Common core

39 On the development of which see Zimmermann, Roman Law, 22 ff.

somewhat different meaning in different legal systems and that a require-

(b) Variations of a theme

51 Article 20 I OR; § 879 I ABGB.

infringement. A number of criteria are listed which have to be taken into

(c) Regulae iuris

58 Article 15:102(2), (3) PECL.

not reasonably have been expected to avoid or overcome.66 The postpone-

66 Article 14:303 PECL.

(d) Good faith

performance85 or change of circumstances;86 they allow a party to cure a non-

(2) Convergence and tradition

85 Article 6:108 PECL.

(a) Stipulatio alteri

(b) Direct representation