Germany and South Africa : a comparative study of their concepts of contract law and mistake

[摘要] ENGLISH ABSTRACT: The problem of mistake and its impact on the formation of contract is a central issue in thelaw of contract of all legal systems. The thesis investigates this area by considering themanner in which it has been dealt with in Germany and South African law. Although bothlegal systems are of the civilian origin. The German law is a codified system, whereas SouthAfrican law is an uncodified one in which in the absence of legislation, legal problems areresolved by decisions of the High Court operating under a strict doctrine of legal precedent.German law does not in a formal sense acknowledge that judges can make law, but the thesisdemonstrates the considerable weight that is nevertheless attached to judicial decisions inpractice.The impact of differences in legal methodology on substantive law is a principal theme of theinvestigation. It is addressed by means of a systematic comparison between the manner inwhich the two systems deal with concepts such as heiuristic act and declarations of will, thenotion of contract and the relevance of offer and acceptance as its constituent elements.Thereafter the broad topic of mistake as a circumstance that vitiates agreement and otherdefects of will such as deceit, duress and undue influence are considered.Whereas German law as a codified system presents a comprehensive regulation of the issues, a case law system such as that of South Africa can only deal with matters brought before thecourts by parties engaged in a dispute. Because judges also tend to frame decisions asnarrowly as possible, such a system characterised by gaps in the law in relations to issues thathave not been authoritatively determined. The resultant uncertainty is exacerbated by the factthat different courts might decide the same issue differently and that a considerable period oftime might elapse before the issue is settled by the highest court in the judicial hierarchy.In regard to matters of substance, both systems proceed from a common conceptualframework, but often tend to emphasise different aspects in coming to solutions. German lawplaces great store on the notion of the declaration of will, a concept which is analysed inconsiderable detail in relation to its treatment in South African law.Although South Africanlaw recognises the notion of a juristic act, there is no sign of the refined and systematicdiscussion of the concept along the lines of German law. In consequence, concepts such as offer and acceptance play a less important role in South African law. In relation to thetreatment of mistake as well the greater emphasis of German law on the declarations of willis in marked contrast to the more subjective approach of South African law and its resort to atheory of reliance as a corrective liability in cases of disagreement. Both systems adopt anapproach with subjective and objective elements. but with a different mix of these elements ineach instance.An overriding conclusion is that both systems might have erred in placing too great anemphasis on objective elements in the determination of when contractual liability should beimposed. It is contended that renewed attention to the doctrine of culpa in contrahendo mightenable both South African and German law to deal more satisfactorily with the problem of disagreement in contract.

[发布机构] Stellenbosch University