Southern Cross: Civil Law and Common Law in South AfricaThis book provides a history of some of the main institutions of South African private law and in so doing explores the process through which integration of the English common law and the continental civil law came about in that jurisdiction. Here is a book aimed at both European and South African audiences. For European lawyers it provides a stimulating insight into the way the process of harmonization of private law has occurred in South Africa and may occur within the European Union. By analysing the historical evolution of the most important institutions of the law of obligations and the law of property the book demonstrates how the two legal traditions have been accommodated within one system. The starting point for each essay is the "pure" Roman-Dutch law as it was transplanted to the Cape of Good Hope in the years following 1652 (and as it has been examined in considerable detail in another volume edited by Robert Feenstra and Reinhard Zimmerman, published in 1992). The analysis focuses on how the Roman-Dutch law has been preserved, changed, modified or replaced in the course of the nineteenth century when the Cape became a British colony; and on what happened after the creation of the union of South Africa in 1910. Each essay therefore attempts, in the field of law with which it is dealing, to answer questions such as: what was the level of interaction between the civil law and the common law? What were the mechanisms that brought about the particular form of competition, coexistence or fusion that exists in that area of law? Is the process complete or is it still continuing? Is it possible to observe the emergence, from these two routes, of a genuinely South African private law? How is the result to be evaluated? In establishing reception patterns at the level of specific areas of law, they go beyond generalization about the compatibility of the two traditions and present evidence of a possible symbiosis of English and Continental law. For South African readers the principal value of the book is that it offers essays by the most prominent South African private lawyers refelecting on the history of their subjects. It therefore constitutes the first stage in the writing of a history of substantive private law in South Africa. So far the focus has mainly been on the so called "external history" of South African law, and such texts as there are on the development of the institutions of private law are often in Afrikaans and mainly to be found in unpublished theses. Thus this book fulfils a real need for those teaching South African private law and legal history. Although the volume investigates a specific aspect of the making of modern South African law it is imperative not to lose sight of the fact that private law in that country, as every way else did not develop in a vacuum, but as part of a wider political and social prcess. For this reason the book opens with an essay which contextualizes the contributions that follow, giving a view of the "setting" in which the development of South Africa took place: colonial domination, cultural imperialism, and racial and nationalistic ideologies. Two further introductory essays pay specific attention to the impact of the procedural framework on the substantive private law and to the "architects" of the mixed system. |
Contents
List of Contributors | xxvi |
Table of Contents xi | xxvi |
Part VI | xxvi |
CHAPTER 1ROMANDUTCH LAW IN ITS SOUTH AFRICAN | xxvi |
CHAPTER 3THE ARCHITECTS OF THE MIXED LEGAL | xxvi |
CHAPTER 5CONTRACT FORMATION | xxvi |
CHAPTER 16UNJUSTIFIED ENRICHMENT | xxvi |
CHAPTER 23NEIGHBOUR | xxvi |
JUDICIAL CHANGES IN THE LAW OF SURETYSHIP | 421 |
CHANGES IN THE OPERATION OF THE LAW | 430 |
Suretyship | 431 |
THE FORMAL INTRODUCTION OF ENGLISH | 445 |
THE REPEAL OF THE GENERAL LAW AMENDMENT | 465 |
THE OUDTSHOORN MUNICIPALITY DECISION IN 1985 | 475 |
Negotiable Instruments | 481 |
THE PROTECTION OF THE BONA FIDE TRANSFEREE | 492 |
CHAPTER 25POSSESSION | xxvi |
List of Contributors | xxvii |
South African Law as a Mixed Legal System | 1 |
IMPERIAL LAW WITHOUT | 7 |
LAW REPORTING IN SOUTH AFRICA | 15 |
RomanDutch Law in its South African Historical Context | 41 |
African LandA History of Dispossession | 69 |
The Architects of the Mixed Legal System | 95 |
CHAPTER 4THE INTERACTION OF SUBSTANTIVE LAW | 141 |
THE INTERACTION OF SUBSTANTIVE | 151 |
The Interaction of Substantive Law and Procedure | 155 |
CONCLUSION | 161 |
Contract Formation | 165 |
Interpretation of Contracts | 195 |
EXCLUSION OR EXEMPTION CLAUSES | 215 |
DOLUS | 236 |
Good Faith and Equity | 239 |
EQUITY AFTER BANK OF LISBON | 255 |
Voidable Contracts | 261 |
BETWEEN OUR LAW AND THE LAW OF ENGLAND | 294 |
CHAPTER 9BREACH OF CONTRACT | 303 |
CANCELLATION AS A REMEDY FOR BREACH | 320 |
Agency and Stipulatio Alteri | 335 |
AND THE THIRD PARTY | 342 |
CHAPTER 11PURCHASE AND SALE | 361 |
Ownership | 370 |
THE DUTIES AND LIABILITIES OF THE PARTIES | 372 |
Purchase and Sale | 377 |
THE DUTIES AND LIABILITIES OF THE PARTIES | 383 |
CONCLUSION | 387 |
Employment Relations | 389 |
DIFFERENCES BETWEEN THE ENGLISH | 395 |
CONCLUSION | 415 |
VALUE IN THE BILLS OF EXCHANGE ACT | 500 |
THE NEGLIGENT COLLECTING BANK | 508 |
INTRODUCTION | 523 |
Unjustified Enrichment | 526 |
Aquilian Liability I Nineteenth Century | 559 |
CONCLUSION | 590 |
Aquilian Liability II Twentieth Century | 595 |
CULPA | 600 |
THE ELEMENT OF INIURIA RAISES | 604 |
A FIFTH WHEEL ON | 620 |
The Protection of Personality Rights | 639 |
IMPAIRMENT OF DIGNITY AND INVASION | 650 |
J R L Milton Pietermaritzburg | 657 |
TENURES 16521910 | 659 |
LAND OWNERSHIP RESTRICTIONS CIRCA 1930 1995 | 679 |
PROTECTION OF OWNERSHIP | 685 |
CONCEPTUALIZING OWNERSHIP | 692 |
Original Acquisition of Ownership | 701 |
Transfer of Ownership | 727 |
MODES OF DELIVERY OF MOVABLE PROPERTY | 739 |
THE TRANSFER OF OWNERSHIP IN LAND | 748 |
Neighbour | 759 |
CHAPTER 24SERVITUDES | 785 |
Servitudes | 801 |
CONCLUSION | 815 |
INTRODUCTION | 819 |
POSSESSORY PROTECTION | 835 |
Possession | 842 |
CHAPTER 26TRUST | 849 |
Trust | 859 |
873 | |
889 | |
Other editions - View all
Southern Cross: Civil Law and Common Law in South Africa Reinhard Zimmermann,D. P. Visser Limited preview - 1996 |
Southern Cross: Civil Law and Common Law in South Africa Reinhard Zimmermann No preview available - 1996 |
Common terms and phrases
Acta Juridica action Appellate Division applied approach Aquilian liability Bank Bills of Exchange Buch buyer Cape Supreme Court Cape Town causa century cheque Chief Justice civil law claim Colony common law culpa damages decision Delict doctrine Dutch duty Edms English law Equity exceptio doli fraud Hahlo/Kahn idem influence insurance law Joubert judge judgment judicial Kotzé land law of contract Law of Obligations Law Reports legal system legislation lex Aquilia Lord Menz Merwe misrepresentation modern Natal negligence Orange Free Oudtshoorn Municipality parties plaintiff Pothier principles Provincial Division reasonable Recht reference regard Reinhard Zimmermann rescission Roman law Roman-Dutch authorities Roman-Dutch law rule SALJ South African courts South African law specific performance Stellenbosch surety suretyship THRHR tion Transvaal unjustified enrichment Villiers CJ Visser Voet Wessels
References to this book
Ausländische Zivilrechtsformen im deutschen Erbschaftsteuerrecht Manfred Klein Limited preview - 2000 |
A Commonwealth of Knowledge: Science, Sensibility, and White South Africa ... Saul Dubow No preview available - 2006 |