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Constitutionalism, good faith and the doctrine of specific performance: rights, duties and equitable discretion

Siliquini-Cinelli, Luca and Hutchison, Andrew 2016, Constitutionalism, good faith and the doctrine of specific performance: rights, duties and equitable discretion, South African law journal, vol. 133, no. 1, pp. 72-101.

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Title Constitutionalism, good faith and the doctrine of specific performance: rights, duties and equitable discretion
Author(s) Siliquini-Cinelli, Luca
Hutchison, Andrew
Journal name South African law journal
Volume number 133
Issue number 1
Start page 72
End page 101
Total pages 30
Publisher Juta Law
Place of publication Lansdowne, South Africa
Publication date 2016
ISSN 1996-2177
Summary This article will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question whether specific performance is available as of right (as in the civil law), or only subject to judicial discretion (as in the common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the common-law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The article will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.
Language eng
Field of Research 189999 Law and Legal Studies not elsewhere classified
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2016, Juta Law
Persistent URL http://hdl.handle.net/10536/DRO/DU:30081508

Document type: Journal Article
Collection: Law
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