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حقوق::
تعهد الزام آور است (اصل لزوم وفای به عهد)، اصل لزوم وفای به عهد
Whilst, by operation of the principle of freedom of contract, individuals are at liberty to conclude contracts with whom and on what terms they deem fit, and the courts will, by way of the principle of pacta sunt servanda, generally enforce these contracts, the courts have deemed it necessary to retain a residual power to refuse to enforce the terms of a contract when to do so would be contrary7 to public policy.
This, according to Ngcobo J, means that the inquiry must be 'directed at the objective terms of the contract'.31 This requires a weighing up of two considerations, namely, the principle of pacta sunt servanda and the right to seek judicial redress.
Traditionally, the principal consideration in the public policy analysis is that of pacta sunt servanda, which our courts have positioned as the 'cornerstone of our law of contract'.28 Whilst some may refer to this 'grand narrative'29 of contractual freedom and enforcement of contracts in derisive terms, it is nonetheless the starting point of any public policy analysis.30 The importance of pacta sunt servanda to the analysis is apparent from even a cursory examination of case law.
In Sentrale Ko-op Graanmaatskappy Beperk v Shifrenp0 it spoke of the elementary and fundamental principle that contracts be enforced; and in Basson v CJtihmn Eksteen JA, in the context of the much quoted ratio of Smalberger JA in Sasfin v Beukes that 'the power to declare contracts contrary to public policy should be . . . exercised sparingly and only in the clearest of cases',61 gave some indication of the importance of pacta sunt servanda to contract - and the public policy analysis - when he opined that without it, 'all trade would be impossible'.35 The Supreme Court of Appeal reaffirmed these principles in Brisley v Drotsky, with Cameron JA (as he then was) noting that the judicial enforcement of terms, as agreed to, is underpinned by 'weighty considerations of commercial reliance and social certainty'.36 The Constitutional Court in Barkhuizen also followed suit, arguing that pacta sunt servanda is central to the notion of ' [s] elf-autonomy, or the ability to regulate one's own affairs, even to one's own detriment',37 38 and held that this 'is the very essence of freedom and a vital part of dignity'.''
According to NgcoboJ, the first question to be asked when examining the demands of public policy is whether, on its face, the 'clause itself is unreasonable'.40 The learned justice then stated that in order to determine what is reasonable, the court must balance two conflicting (policy) considerations: pacta sunt servanda and the right to seek judicial redress.،
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