Contractual Provisions and Public Interest in South Africa

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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. (correct)

It does not bind private entities.

It is limited to the executive branch.

It applies only to the legislature and judiciary.

According to section 8(2) of the Constitution, when does a provision of the Bill of Rights bind a natural or juristic person?

When it imposes duties on the legislature.

Only if it is explicitly stated in legislation.

When it is subject to approval by the executive.

To the extent that it is applicable considering the nature of the right and duty imposed by it. (correct)

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)?

Limit the right without any specified guidelines.

Develop the common law to give effect to the right if necessary. (correct)

Completely disregard the Bill of Rights.

Apply only legislation without considering the common law.

In what situation can constitutional rights apply directly against private parties?

Depending on the nature of the right and duty imposed by it. Signup and view all the answers

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 Signup and view all the answers

What is the main argument against basing contracts solely on reliance?

Reliance fails to reflect the common intention of the parties Signup and view all the answers

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. Signup and view all the answers

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 Signup and view all the answers

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. Signup and view all the answers

What approach to contract law has South African law historically vacillated between?

Subjective approach Signup and view all the answers

Which theory does the text suggest as correcting the deficiencies of the will theory in forming contracts?

Reliance theory Signup and view all the answers

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 Signup and view all the answers

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 Signup and view all the answers

What are some key values of ubuntu that may influence the common law of contract?

Social justice, fairness, respect, and dignity Signup and view all the answers

What remains true today despite legislative changes and judicial adaptations?

Fundamental principles of the law of contract as expounded by Dutch institutional writers Signup and view all the answers

How does the modern notion of contract differ from the Roman concept?

Fundamentally different in nature Signup and view all the answers

In which section does the text focus on the historical development of the common law of contract?

Current section Signup and view all the answers

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 Signup and view all the answers

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. Signup and view all the answers

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. Signup and view all the answers

What requirements, apart from mere agreement, must be satisfied for a contract to be binding?

Lawful, reasonable, and procedurally fair. Signup and view all the answers

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. Signup and view all the answers

Why is it stated that administrative action must be lawful, reasonable, and procedurally fair?

To ensure justice and adherence to constitutional principles. Signup and view all the answers

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. Signup and view all the answers

What kind of right is created by an obligation between parties in a contract of sale?

Personal right Signup and view all the answers

In a contract of sale, what is the legal relationship between the debtor and creditor based on?

Numerous obligations Signup and view all the answers

What distinguishes a personal right from a real right in the context of obligations?

Directly tied to ownership Signup and view all the answers

What term is used to refer to an obligation that can be enforced through legal action?

Civil obligation Signup and view all the answers

If a debt owed under a natural obligation is nonetheless paid, why can it not be recovered?

It was not enforceable Signup and view all the answers

How many parties can be involved in a single obligation in a contract of sale?

Multiple co-debtors and co-creditors Signup and view all the answers