The future of the doctrine of economic duress in South African contract law: The influence of Roman-Dutch law, English law and the Constitution of the Republic

Abstract

In England, the contractual doctrine of economic duress is an important mechanism for curbing abuses of superior bargaining power. In contrast, in South Africa, the courts are yet to articulate a definitive doctrine. In this article, I argue for a twenty-first century South African doctrine of economic duress that is delineated primarily in terms of South Africa’s foundational constitutional value of equality. For this purpose, I consider English contract law and show how it is a concern for ‘equity’ that has been central to its treatment of economic duress. I then highlight the normative limitations of the English doctrine, but argue that the English legal experience of economic duress remains valuable for corresponding developments in the modern South African commercial context, especially in light of the latter’s post-apartheid constitutional framework, which provides the normative content of baseline standards that must inform its doctrine of economic duress.