Developing a test for economic duress in the South African law of contract: a comparative perspective

Until the recent Supreme Court of Appeal decision in Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) SA 339 (SCA), the courts in South Africa consistently adopted the attitude that so-called 'economic duress' does not constitute a valid cause of action in our law of contract. In this sense...

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Main Author: Glover, Graham
Format: Others
Language:English
Published: 2006
Online Access:http://hdl.handle.net/10962/70832
https://hdl.handle.net/10520/EJC53694
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spelling ndltd-netd.ac.za-oai-union.ndltd.org-rhodes-vital-297482018-11-23T04:39:59ZDeveloping a test for economic duress in the South African law of contract: a comparative perspectiveGlover, GrahamUntil the recent Supreme Court of Appeal decision in Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) SA 339 (SCA), the courts in South Africa consistently adopted the attitude that so-called 'economic duress' does not constitute a valid cause of action in our law of contract. In this sense, our law lags behind other jurisdictions, which have recognised for some time that threats of economic harm can be just as coercive as threats to person or property, especially in the modern commercial word. While the indication given in the Medscheme case that our law could develop to recognise cases of economic duress is a welcome one, the court's statement in this regard was merely obiter, and the court consequently undertook no analysis of the issue. In this article, an attempt is made to develop guidelines for dealing with such cases, in accordance with a more modern and coherent test for duress in contract generally. Much of the discussion involves comparative analyses of the authorities on economic duress in Anglo-American jurisdictions, since there is a dearth of authority on the point in South Africa.2006textarticle30 pagespdfhttp://hdl.handle.net/10962/70832vital:29748https://hdl.handle.net/10520/EJC53694EnglishSouth 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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language English
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description Until the recent Supreme Court of Appeal decision in Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) SA 339 (SCA), the courts in South Africa consistently adopted the attitude that so-called 'economic duress' does not constitute a valid cause of action in our law of contract. In this sense, our law lags behind other jurisdictions, which have recognised for some time that threats of economic harm can be just as coercive as threats to person or property, especially in the modern commercial word. While the indication given in the Medscheme case that our law could develop to recognise cases of economic duress is a welcome one, the court's statement in this regard was merely obiter, and the court consequently undertook no analysis of the issue. In this article, an attempt is made to develop guidelines for dealing with such cases, in accordance with a more modern and coherent test for duress in contract generally. Much of the discussion involves comparative analyses of the authorities on economic duress in Anglo-American jurisdictions, since there is a dearth of authority on the point in South Africa.
author Glover, Graham
spellingShingle Glover, Graham
Developing a test for economic duress in the South African law of contract: a comparative perspective
author_facet Glover, Graham
author_sort Glover, Graham
title Developing a test for economic duress in the South African law of contract: a comparative perspective
title_short Developing a test for economic duress in the South African law of contract: a comparative perspective
title_full Developing a test for economic duress in the South African law of contract: a comparative perspective
title_fullStr Developing a test for economic duress in the South African law of contract: a comparative perspective
title_full_unstemmed Developing a test for economic duress in the South African law of contract: a comparative perspective
title_sort developing a test for economic duress in the south african law of contract: a comparative perspective
publishDate 2006
url http://hdl.handle.net/10962/70832
https://hdl.handle.net/10520/EJC53694
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