The importance of legal certainty in the South African common law of contract in promoting the constitutional vision

Abstract

The importance of legal certainty in the South African common law of contract in promoting the constitutional vision is investigated and tested within a substantive contextual understanding. It emerges the common law of contract was dominated by the ideological underpinning and privileging of the common law principle pacta sunt servanda, which emphasised freedom and sanctity of contract over constitutional and common law values. Traditionally, this resulted in much uncertainty in the common law of contract. The study found that legal certainty relates to the degree of predictability and stability of judicial decisions. The importance of both freedom of contract as embodied in the pacta sunt servanda principle and constitutional and common law values for creating fair, just and equitable outcomes, and for promoting legal certainty and the realisation of the longer-term constitutional vision, was discussed against the backdrop of the important Constitutional Court judgment in the recent Beadica case.