A comparative analysis of cancellation, discharge and avoidance as a remedy for breach of contract in South African law, English law and the Convention for International Sale of Goods (CISG)
Loading...
Authors
Vambe, Beauty
Issue Date
2016-02
Type
Dissertation
Language
en
Keywords
Termination , Cancellation , South Africa , Discharge , English law , Avoidance , CISG , Breach , Remedy , Notice , Rescission
Alternative Title
Abstract
The aim of the thesis was to critically compare termination of contracts in South Africa,
England and the CISG. It was found out that South Africa prefers to use the term cancellation
because it is a remedy of last resort. The problem with cancellation is that is a drastic step of
bringing the transaction to an abrupt and premature end, which is only used when a material
breach occurs. English law uses the term discharge as it refers to the ending of the obligations
under the contract when a breach occurred and represents the point at which one party is no
longer bound by its’ contractual obligations and claims damages. Chapter 3 argued that
though discharge goes beyond cancellation it does not cater for diverse domestic rules which
need uniform international laws. Chapter 4 discussed and argued that avoidance is a term that
was chosen by the CISG to end a contract when a fundamental breach occurs. There were
problems on interpretation of terms and use of diverse domestic rules. The advantage of the
term avoidance is that it is a technical term adopted and given a uniform meaning in the
CISG where interpretation of terms and diverse domestic rules did not apply. Avoidance
furthermore comprised concepts of rescission and termination. From the above it was argued that South Africa needs to develop new terms for termination of a contract and create new laws along the lines of the CISG.
Description
Citation
Vambe, Beauty (2016) A comparative analysis of cancellation, discharge and avoidance as a remedy for breach of contract in South African law, English law and the Convention for International Sale of Goods (CISG), University of South Africa, Pretoria, <http://hdl.handle.net/10500/21717>