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Southern CrossCivil Law and Common Law in South Africa$
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Reinhard Zimmermann and Daniel Visser

Print publication date: 1996

Print ISBN-13: 9780198260875

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198260875.001.0001

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Good Faith and Equity

Good Faith and Equity

Chapter:
(p.217) 7. Good Faith and Equity
Source:
Southern Cross
Author(s):

Reinhard Zimmermann

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198260875.003.0008

In the law of contract, there is one specific device that, more than any other, infused this branch of the law with an equitable spirit: the concept of bona fides, or good faith. Bona fides was one of the most fertile agents in the development of Roman contract law. In relation to iudicia stricti iuris it gained its influence as a result of a specific standard clause, inserted into the procedural formula at the request of the defendant. This clause was known as an exceptio doli. Exceptio doli was a powerful instrument for bringing about a just solution, for it invited an answer which located dolus not so much in personal misconduct, but rather in an inequity or injustice that would flow from the action being countenanced. Ultimately, therefore, it gave the judge an equitable discretion to decide the case before him in accordance with what appeared to be fair and reasonable. This chapter discusses the role of exceptio doli, dolus, and bona fides in South African contract law.

Keywords:   South African law, contract law, exceptio doli, bonae fides, dolus

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