Price adaptation and the requirement of certainty with specific reference to the contract of sale

[摘要] ENGLISH ABSTRACT:This study addresses the well-established principle of South African law that a price in acontract of sale must be certain or objectively ascertainable. The interpretation given to thisprinciple by our courts is examined first, and found to be conservative.This approach is thereupon set against the recognition that parties frequently wish to providefor the possibility of price adaptation. The notion of price adaptation recognises that the latteroften contract within a commercial environment fraught with uncertainty, yet wish to agreeupon a price term which is both flexible and secure.An attempt to provide for price adaptation may bring an agreement into conflict with the ruleof pretium certum. Accordingly, the study addresses the various means by which partiesattempt to import price adaptation, whilst, at the same time, ensuring that their agreement doesnot fall foul of the latter rule. The courts may be of help through the implementation of termsor, as in the case of certain European jurisdictions, through their power to modify agreementsfollowing a drastic change in circumstance. Particular attention is given, however, to priceadjustment clauses and reference in contracts to the standard of reasonableness. Thedevelopment of price adaptation techniques depends upon the astuteness of courts in theirstriking down of agreements on the basis of pretium certum.The study concludes with an analysis of the American approach to certainty of price.

[发布机构] Stellenbosch University