The Reliance On What Is 'Reasonable' Under The Circumstances In Contractual Relationships

• Published date: 14 June 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Trials & Appeals & Compensation
• Law Firm: Barnard Inc Attorneys
• Author: Ms Lethabo Qoza-Msiza

An area of difficulty that often confronts the courts is that of contractual disputes - particularly in respect of the enforcement or non-enforcement of contracts/contractual terms.

The general rule is that courts judge contractual disputes based on the notion of pacta sunt servanda, meaning that parties should honour their obligations made in terms of agreements, irrespective of whether such obligations are onerous or biased toward one party. However, the courts are not rigid in their approach and consider the merits of each case.

The Supreme Court of Appeal in the case of Brisley v Drotsky 2002 4 (SA) 1 (SCA) provided some guidance and expressed that the notion of pacta sunt servanda is not 'written in stone' and may therefore be altered to provide that, only contracts that are entered into voluntarily by parties and which are reasonable, must be enforceable. Therefore, in exceptional cases, the Courts consider...