RECONSIDERING AN UNDERSTANDING OF DAMAGES AS A SURROGATE OF SPECIFIC PERFORMANCE IN SOUTH AFRICAN LAW OF CONTRACT

Steven Poynton Stuart-Steer

Abstract


The South African law of contract provides three broad types of remedies in the event of breach of contract:

 

  • Remedies aimed at keeping the contract alive;
  • Remedies aimed at cancelling the agreement; and
  • Remedies aimed at compensating the innocent party for loss or harm caused by the breach.

The claim for contractual damages is a remedy in the third category serving a compensatory function in the law of contract as a matter of corrective justice. The jurisprudential underpinning and reason for its grant have been a prominent issue in contract law theory and have been explored and analysed in depth.

For instance Fuller and Perdue's seminal work The Reliance Interest in Contract Damages provides a distinctive purposive understanding of contract theory through its compensatory function in the form of contractual damages.  But a topic often less explored or considered is the underpinning of an order of specific performance, being a remedy of the first category above in upholding and enforcing the contract.


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