Glossary of Contract Law Terms
Introduction
This glossary provides definitions of key contract law terms in South African law. The terminology reflects the Roman-Dutch origins of South African contract law, with significant English law influences.
Key Terms
Pacta Sunt Servanda: Latin for “agreements must be kept.” This is a fundamental principle of South African contract law, requiring that parties honour their contractual obligations. The Constitutional Court in Barkhuizen v Napier 2007 (5) SA 323 (CC) affirmed this principle while holding that it must be applied in light of constitutional values.
Consensus: The meeting of the minds between contracting parties. Consensus is the foundational requirement for a valid contract, requiring offer and acceptance, and a common intention to create legal relations.
Exceptio Doli Generalis: A general defence of bad faith, derived from Roman law. The Appellate Division in Bank of Lisbon v De Ornelas 1988 (3) SA 580 (A) held that the exceptio doli generalis no longer forms part of South African law. The role of good faith in contract law remains the subject of debate.
Estoppel: A doctrine preventing a party from denying a state of affairs that they have represented to be true, where another party has relied on that representation to their detriment. Estoppel operates as a shield, not a sword.
Tacit Terms: Terms that are implied in a contract by law, custom, or the nature of the agreement, without being expressly stated. Tacit terms may be implied by operation of law (naturalia) or by the court to give business efficacy to the contract.
Mora Debitoris: Default by the debtor in performing an obligation that is due and enforceable. The creditor must demand performance (interpellatio) unless a specific date was agreed.
Mora Creditoris: Default by the creditor in accepting performance tendered by the debtor. This may suspend the debtor’s obligation and entitle the debtor to compensation.
Specific Performance: A remedy requiring a party to perform their contractual obligations as agreed. South African courts have discretion to refuse specific performance where it would be inequitable.
Exception Non Adimpleti Contractus: A defence available to a party who has not received performance, entitling them to withhold their own performance until the other party performs or tenders performance.