Academic literature on the topic 'Contracts (Roman-Dutch law)'

This chapter provides the reader with comments on the Hague Principles from the perspective of South African private international law of contract.Private international law in the Republic of South Africa is historically based on Roman–Dutch and English law, but is today influenced by domestic constitutional values, especially in the fields of international family and succession law. In the realm of the international law of obligations, the impact of the English common law is particularly strong. The notion of ‘the proper law of the contract’ is therefore widely used to indicate the law applicable to contractual obligations. The sources of private international law of contract are almost exclusively case law and the opinions of academic authors. The South African courts have always followed a comparative approach in respect of private international law, initially under the influence of an internationalist understanding of the conflict of laws. The courts would therefore certainly be entitled to refer to the Hague Principles as persuasive authority in the interpretation, supplementation, and development of the rules and principles of South African private international law.

At the time of the reception of Roman-Dutch law at the Cape in the seventeenth century, both children and the surviving spouse enjoyed sufficient protection at the death of the breadwinner (normally the father and husband): children by way of the civilian legitimate portion and the spouse by way of the matrimonial property regime of community of property prevalent in Roman-Dutch law of the time. However, after the English occupation of the Cape in the early nineteenth century this protection was slowly eroded. This happened, first, by the acceptance of the principle of freedom of testation under English influence and, secondly, by the growing popularity of ante-nuptial contracts excluding community of property. This chapter explains how family protection was gradually restored in South Africa. In the case of children, this happened by the courts awarding a maintenance claim against the deceased parent’s estate; and in the case of the surviving spouse it was by means of a statutory maintenance claim against the estate of the other spouse. South African law therefore chose the common law approach of discretionary maintenance over the civilian approach of fixed shares. The chapter sets out the respective histories of these two claims as well as their operation in modern South African law. It discusses other possible protection measures and potential avoidance mechanisms. Finally, the chapter contains a brief discussion of the position of South Africans living under African customary law and the importance of the customary law principle of ‘ubuntu’ in this context.

This chapter begins by talking about the South African law of succession. The common law in this field is still essentially Roman-Dutch law, as updated by the courts. The chapter also analyzes the only one form of will in modern law: the statutory will. Joint or mutual wills are permitted, but are treated merely as two separate wills embodied for convenience in one document. It then looks at the order of succession in cases of intestacy, arguing that the South African law of intestacy is regulated by the Intestate Succession Act 81 of 1987. Ultimately, this chapter examines the compulsory shares or minimum percentages for a surviving spouse, civil partner or child under South African law. It also reviews the joint estate and ante-nuptial contract—highlighting that under Roman-Dutch law applicable to a South African marriage, if no ante-nuptial contract is entered into, the parties are married in community of property, the effect of which is to create a joint estate.