The test for duress in the South African law of contract
Although it is well-known that a contract induced by duress is voidable at the instance of an aggrieved party, little analysis of this cause of action has been undertaken in South Africa. The test for duress developed by Wessels, and adopted by the courts in Broodryk v Smuts NO 1942 TPD 47, has exer...
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ndltd-netd.ac.za-oai-union.ndltd.org-rhodes-vital-297262018-11-23T04:39:59ZThe test for duress in the South African law of contractGlover, GrahamAlthough it is well-known that a contract induced by duress is voidable at the instance of an aggrieved party, little analysis of this cause of action has been undertaken in South Africa. The test for duress developed by Wessels, and adopted by the courts in Broodryk v Smuts NO 1942 TPD 47, has exercised a vice-grip over this area of contract law. In this article, all five elements of the traditional South African test are subjected to critical examination, and their deficiencies are exposed and discussed. It is argued that the test is neither logically nor conceptually satisfactory, and has hampered development of this area of law. Trends in other jurisdictions, belonging to both the civil-law and the common-law families, are analysed and compared to South African law. On this basis a more modern and coherent test is proposed. This test would be two-pronged, and involve an assessment, in turn, of the lawfulness of the threat made and of whether the party who in fact succumbed to an unlawful threat and entered into the contract was legally justified in doing so.2006textarticle28 pagespdfhttp://hdl.handle.net/10962/70756vital:29726https://hdl.handle.net/10520/EJC53682EnglishSouth African Law JournalJutaThe use of this resource is governed by the terms and conditions of the Sabinet Terms and Conditions of Use statement (https://journals.co.za/upload/marketing/Sabinet_Website_TandC_2017.pdf) |
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English |
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Others
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Although it is well-known that a contract induced by duress is voidable at the instance of an aggrieved party, little analysis of this cause of action has been undertaken in South Africa. The test for duress developed by Wessels, and adopted by the courts in Broodryk v Smuts NO 1942 TPD 47, has exercised a vice-grip over this area of contract law. In this article, all five elements of the traditional South African test are subjected to critical examination, and their deficiencies are exposed and discussed. It is argued that the test is neither logically nor conceptually satisfactory, and has hampered development of this area of law. Trends in other jurisdictions, belonging to both the civil-law and the common-law families, are analysed and compared to South African law. On this basis a more modern and coherent test is proposed. This test would be two-pronged, and involve an assessment, in turn, of the lawfulness of the threat made and of whether the party who in fact succumbed to an unlawful threat and entered into the contract was legally justified in doing so. |
author |
Glover, Graham |
spellingShingle |
Glover, Graham The test for duress in the South African law of contract |
author_facet |
Glover, Graham |
author_sort |
Glover, Graham |
title |
The test for duress in the South African law of contract |
title_short |
The test for duress in the South African law of contract |
title_full |
The test for duress in the South African law of contract |
title_fullStr |
The test for duress in the South African law of contract |
title_full_unstemmed |
The test for duress in the South African law of contract |
title_sort |
test for duress in the south african law of contract |
publishDate |
2006 |
url |
http://hdl.handle.net/10962/70756 https://hdl.handle.net/10520/EJC53682 |
work_keys_str_mv |
AT glovergraham thetestforduressinthesouthafricanlawofcontract AT glovergraham testforduressinthesouthafricanlawofcontract |
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