30 Questions
What does section 8 of the Constitution specify regarding the application of the Bill of Rights?
It applies to all law and binds all organs of state.
According to section 8(2) of the Constitution, when does a provision of the Bill of Rights bind a natural or juristic person?
To the extent that it is applicable considering the nature of the right and duty imposed by it.
What must a court do when applying a provision of the Bill of Rights to a natural or juristic person as per section 8(3)(a)?
Develop the common law to give effect to the right if necessary.
In what situation can constitutional rights apply directly against private parties?
Depending on the nature of the right and duty imposed by it.
In circumstances where A can escape liability due to a material mistake, what grounds can be used by A to avoid liability?
Material mistake made by A
What is the main argument against basing contracts solely on reliance?
Reliance fails to reflect the common intention of the parties
What is required of a court when determining that a constitutional right applies directly against a private person as per section 8(3)?
Apply or develop common law to give effect to the right.
What is the relationship between the will theory and the reliance theory based on the text?
The reliance theory is a supplement to the will theory
How does section 8(2) of the Constitution affect private parties in relation to the Bill of Rights?
It enables them to be directly bound depending on the nature of the right and duty imposed by it.
What approach to contract law has South African law historically vacillated between?
Subjective approach
Which theory does the text suggest as correcting the deficiencies of the will theory in forming contracts?
Reliance theory
Why does the text refer to relying on common intention rather than just reliance as somewhat artificial?
Common intention reflects genuine consensus better than reliance
What is the primary influence of African customary law in the sphere of contract law?
Infusion of African values like ubuntu into the common law
What are some key values of ubuntu that may influence the common law of contract?
Social justice, fairness, respect, and dignity
What remains true today despite legislative changes and judicial adaptations?
Fundamental principles of the law of contract as expounded by Dutch institutional writers
How does the modern notion of contract differ from the Roman concept?
Fundamentally different in nature
In which section does the text focus on the historical development of the common law of contract?
Current section
Apart from the Constitution, which statutes play a significant role in contract law according to the text?
Consumer Protection Act, National Credit Act, Conventional Penalties Act
What is the reason behind sometimes treating the State less favourably than ordinary contracting parties?
The State's contractual rights must yield before its public duties under the Constitution.
Why might an administrative body or official have to give the other party a hearing before exercising a contractual right to cancel an agreement?
Due to the requirement of administrative justice framed by the principles of the Constitution.
What requirements, apart from mere agreement, must be satisfied for a contract to be binding?
Lawful, reasonable, and procedurally fair.
What additional element might one wish to add to the definition of a contract based on the content provided?
Recognition by law as binding on the parties.
Why is it stated that administrative action must be lawful, reasonable, and procedurally fair?
To ensure justice and adherence to constitutional principles.
In what scenarios will a contractual provision that seeks to fetter a Minister or other public official's discretion not be enforced?
When a statute confers upon them a discretion that must be exercised in the public interest.
What kind of right is created by an obligation between parties in a contract of sale?
Personal right
In a contract of sale, what is the legal relationship between the debtor and creditor based on?
Numerous obligations
What distinguishes a personal right from a real right in the context of obligations?
Directly tied to ownership
What term is used to refer to an obligation that can be enforced through legal action?
Civil obligation
If a debt owed under a natural obligation is nonetheless paid, why can it not be recovered?
It was not enforceable
How many parties can be involved in a single obligation in a contract of sale?
Multiple co-debtors and co-creditors
Explore the interaction between contractual provisions and public interest in South Africa, particularly focusing on scenarios where the State's public duties take precedence over its contractual rights. Understand the implications of statutory discretion and constitutional obligations on enforceability of certain contractual terms.
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