Vereniging van die koopreg : kontraksluiting in 'n historiese, regsvergelykende en internasionale perspektief

[摘要] ENGLISH ABSTRACT:International trade has increased tremendously in the last few decades. When partiesto a contract find themselves in different countries and each has its own legalbackground, specific problems originate in connection with formation of the contract,its execution, the breach thereof and so forth. The predominant theme of this work isthe question of how a diversity of legal rules should be approached in an internationalcontext. The focus is on contract formation, and the rules of offer and acceptance aretherefore examined.As a result of diverse legal cultures, different legal systems often have contradictingrules pertaining to contract formation, which can lead to a variety of problems if thecontracting parties are not aware of the inconsistencies. According to internationalprivate law's choice of law-rules, such a contract should be governed by the rules ofthe legal system with which it has the closest connection. Connecting factors can befor instance the domicile of particular persons at various times, the situs of property,or the place where a juristic act was performed. One specific legal system willtherefore rule the contract.There is however another possibility: that of a uniform substantive law. Thisinvolves the unification of different legal rules into one set of rules to be applied tocontracts which are concluded in an international context.Taking into account that many of the rules and doctrines applicable to contract lawhave a common philosophical origin, the necessity of a convergence of these rulesmay be questioned. However, most of the rules ended up being different in differentlegal systems, and parties to an international transaction will probably not have thesame idea about questions such as the possibility to revoke an offer before acceptance,or the precise moment of formation of the contract. A comparative study of the rulesof offer and acceptance illustrates this point.International efforts to unify the law in this regard are explored, in order to assess thepossibility of a uniform substantive law of contracts. Some of the internationalinstruments seem to be able to find a middle way between conflicting rules, althoughit may not always be the best way to solve the problem. It is argued that harmony isnot necessarily advanced by a codification of existing rules, and that a common legalculture which can lead to the incremental development of harmonious legal principlesmay be an alternative solution for the problem of incompatible national legal systemsin an international context.

[发布机构] Stellenbosch University