Southern Cross: Civil Law and Common Law in South Africa

Front Cover
Clarendon Press, 1996 - History - 892 pages
This 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.

 

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Contents

i
xxvi
Table of Contents xi
xxvi
Part VI
xxvi
CHAPTER 1ROMANDUTCH LAW IN ITS SOUTH AFRICAN
xxvi
CHAPTER 5CONTRACT FORMATION
xxvi
CHAPTER 16UNJUSTIFIED ENRICHMENT
xxvi
CHAPTER 23NEIGHBOUR
xxvi
POSSESSION
xxvi
THE DUTIES AND LIABILITIES OF THE PARTIES
383
CONCLUSION
387
Employment Relations
389
ROMANDUTCH LAW OF EMPLOYMENT
395
CONCLUSION
415
JUDICIAL CHANGES IN THE LAW OF SURETYSHIP
421
Suretyship
431
INSURANCE
435

South African Law as a Mixed Legal System
1
IMPERIAL LAW WITHOUT
7
LAW REPORTING IN SOUTH AFRICA
15
INTRODUCTION
33
RomanDutch Law in its South African Historical Context
41
CHANGES TO THE ADMINISTRATION OF JUSTICE
49
PURISM
60
African LandA History of Dispossession
69
SEGREGATION
81
The Architects of the Mixed Legal System
95
UNION 19101961
119
CONCLUSION
138
THE INTERACTION OF SUBSTANTIVE
151
The Interaction of Substantive Law and Procedure
155
CONCLUSION
161
Contract Formation
165
Interpretation of Contracts
195
THE SECONDARY RULES
210
CHAPTER 7GOOD FAITH AND EQUITY
217
Good Faith and Equity
239
Voidable Contracts
261
BETWEEN OUR LAW AND THE LAW OF ENGLAND
294
CHAPTER 9BREACH OF CONTRACT
303
CANCELLATION AS A REMEDY FOR BREACH
320
CONCLUSION
332
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
English statutes
459
Negotiable Instruments
465
THE OUDTSHOORN MUNICIPALITY DECISION IN 1985
475
Charl Hugo Stellenbosch
481
THE NEGLIGENT COLLECTING BANK
508
INTRODUCTION
523
Unjustified Enrichment
526
Aquilian Liability I Nineteenth Century
559
Aquilian Liability II Twentieth Century
595
THE SAME PATTERN
609
A FIFTH WHEEL ON
620
The Protection of Personality Rights
639
J R L Milton Pietermaritzburg
657
TENURES 16521910
659
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
INTRODUCTION
819
Possession
842
CHAPTER 26TRUST
849
Trust
859
Subject Index
873
Index of Persons
Copyright

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About the author (1996)


Edited by Reinhard Zimmermann, Professor of Private Law, Roman Law and Comparative Legal History at the Faculty of Law, University of Regensburg, and Daniel Visser, Professor of Private Law at the Faculty of Law, University of Cape Town

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