RECONSIDERING AN UNDERSTANDING OF DAMAGES AS A SURROGATE OF SPECIFIC PERFORMANCE IN SOUTH AFRICAN LAW OF CONTRACT
AbstractThe South African law of contract provides three broad types of remedies in the event of breach of contract:Â Remedies aimed at keeping the contract alive;Remedies aimed at cancelling the agreement; andRemedies aimed at compensating the innocent party for loss or harm caused by the breach.The claim for contractual damages is a remedy in the third category serving a compensatory function in the law of contract as a matter of corrective justice. The jurisprudential underpinning and reason for its grant have been a prominent issue in contract law theory and have been explored and analysed in depth.For instance Fuller and Perdue's seminal work The Reliance Interest in Contract Damages provides a distinctive purposive understanding of contract theory through its compensatory function in the form of contractual damages.Â But a topic often less explored or considered is the underpinning of an order of specific performance, being a remedy of the first category above in upholding and enforcing the contract.
Copyright (c) 2019 Steven Poynton Stuart-Steer
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
This journal is an open access journal, and the author(s) and journal should be properly acknowledged, when works are cited.
Authors, copyright holders, may use the publishers version for teaching purposes, in books, theses, dissertations, conferences and conference papers.Â
A copy of the authorsâ€™ publishers version may also be hosted on the following websites:
- Non-commercial personal homepage or blog.
- Institutional webpage.
- Authors Institutional Repository.Â
The following notice should accompany such a posting on the website: â€œThis is an electronic version of an article published in Respponsa Meridiana, Volume XXX, number XXX, pages XXXâ€“XXXâ€, DOI.Â Authors should also supply a hyperlink to the original paper or indicate where the original paper (http://www.journals.ac.za/index.php/responsa) may be found.Â
Authors publishers version, affiliated with the Stellenbosch University will be automatically deposited in the Universityâ€™sâ€™ Institutional RepositoryÂ SUNScholar.
Articles as a whole, may not be re-published with another journal.
The following license applies:
Attribution CC BY-NC-ND 4.0