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حقوق::
طرف قرارداد، طرف قرارداد
Provided it can be shown that there is a sufficiently good reason why the contracting party did not comply with the term, or why to insist on compliance with the term would be unreasonable in the circumstances, enforcement would be contrary to public policy.17
These include morality;''9 the administration of justice;60 the interests of the community and social or economic expedience;61 the necessity for doing simple justice between contracting parties;62 the interests of the state, or of justice, or of the public;63 the free exercise by persons of their common law rights;64 and the concept of ubuntu.65 In the context of restraints of trade, the courts go so far as to consider the conflicting substantive interests of the parties when deciding whether to enforce a restraint.66 Since the advent of the Constitution, the courts have also explicitly recognised the relevance of constitutional rights, such as the rights to have access healthcare and to seek judicial redress, to the public policy analysis.67 These rights, like their common-law cousins, also fall within the 'basket' of potentially relevant policy considerations.68
Similarly, the courts have recognised that the value of equality may, in cases where there is a gross disparity of bargaining power between contracting parties, dictate that less weight be afforded to those principles just mentioned, relative to other considerations.62 63 In such cases other considerations - say, those of fairness and justice - may be afforded a higher degree of relative importance which, all things considered, may incline the court to set the contract aside.
Individuals will be far less willing to incur obligations (thereby decreasing the mutual benefits that often arise from the conclusion of contractual relationships) in the absence of some form of guarantee that there will be reciprocal performance by the other contracting party.
Davis J made a similar point in Mozart Ice Cream Franchises (Pty) Ltd v Davidoff,102 when he held that '[mjanifestly without this principle the law of contract would be subject to gross uncertainty, judicial whim and an absence of integrity between the contracting parties'.103 It is perhaps in this sense that Rawls spoke of promises and obligations as being necessary for the maintenance and stabilisation of a system of social co-operation;104 and in the same vein that Brand JA remarked that '[a] legal system in which the outcome of litigation cannot be predicted with some measure of certainty would fail in its purpose.'105 But, just as it is obvious that there is great value to be had in promoting certainty, it is also obvious that certainty alone is not a consideration that can trump all other policy considerations in all circumstances.،Provided it can be shown that there is a sufficiently good reason why the contracting party did not comply with the term, or why to insist on compliance with the term would be unreasonable in the circumstances, enforcement would be contrary to public policy.17
These include morality;''9 the administration of justice;60 the interests of the community and social or economic expedience;61 the necessity for doing simple justice between contracting parties;62 the interests of the state, or of justice, or of the public;63 the free exercise by persons of their common law rights;64 and the concept of ubuntu.65 In the context of restraints of trade, the courts go so far as to consider the conflicting substantive interests of the parties when deciding whether to enforce a restraint.66 Since the advent of the Constitution, the courts have also explicitly recognised the relevance of constitutional rights, such as the rights to have access healthcare and to seek judicial redress, to the public policy analysis.67 These rights, like their common-law cousins, also fall within the 'basket' of potentially relevant policy considerations.68
Similarly, the courts have recognised that the value of equality may, in cases where there is a gross disparity of bargaining power between contracting parties, dictate that less weight be afforded to those principles just mentioned, relative to other considerations.62 63 In such cases other considerations - say, those of fairness and justice - may be afforded a higher degree of relative importance which, all things considered, may incline the court to set the contract aside.
Individuals will be far less willing to incur obligations (thereby decreasing the mutual benefits that often arise from the conclusion of contractual relationships) in the absence of some form of guarantee that there will be reciprocal performance by the other contracting party.
Davis J made a similar point in Mozart Ice Cream Franchises (Pty) Ltd v Davidoff,102 when he held that '[mjanifestly without this principle the law of contract would be subject to gross uncertainty, judicial whim and an absence of integrity between the contracting parties'.103 It is perhaps in this sense that Rawls spoke of promises and obligations as being necessary for the maintenance and stabilisation of a system of social co-operation;104 and in the same vein that Brand JA remarked that '[a] legal system in which the outcome of litigation cannot be predicted with some measure of certainty would fail in its purpose.'105 But, just as it is obvious that there is great value to be had in promoting certainty, it is also obvious that certainty alone is not a consideration that can trump all other policy considerations in all circumstances.
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