1. її 116,117,118,122 BGB

Do ;s it matter what the parties intended or what they declared? This is the central question around which the discussion of interpretation revolves. It also arises in three standard situations, which we must now still look at.

In all three of them a contractual declaration has been made, but the declarant never wanted to be bound by it. Thus there is a conflict between that party's (real) intention and the signum voluntatis which has actually been set. In the first case, the contractual declaration was neither intended nor expected to be taken seriously. Secondly, there is the situation where the declarant indeed intended his declaration to be taken seriously, but made a mental reservation: in his own mind, he did not wish that declaration to become effective. And thirdly we are dealing with the problem that a contractual declaration, with the connivance of the partner to the contract, is made only in pretence. The BGB regards the lack of seriousness as a vitiating factor (ї 118), considers a reservatio mentalis to be irrelevant (ї 116)^{1 8} and provides, in the case of simulation, that the sham transaction is void (ї 117 I).¹³⁹ If the latter served to disguise another bargain, the disguised transaction may be valid (ї 117 II)?⁴⁰ These solutions may sound fairly obvious, but it should be appreciated that the treatment of the reservatio mentalis is highly problematic from the point of view of the will theory of contract, while from a more formalistic perspective the solution proposed in ї 117 BGB may sound surprising and anomalous. Even in the case of a lack of seriousness, one may have second thoughts. For the other party may not have understood the declaration as expected and

is frequently emphasized ("the last straw moving the scale": cf. the references in Luderitz, op. cit., note 2, p. 265).

South African courts, too, do occasionally apply the contra proferentem rule (with regard to standard terms and other contractual clauses), but only as a last resort, when all attempts at ascertaining the common intention of the parties have failed. Cf. Cairns (Pty.) Ltd. v. Playdon & Co. Ltd. 1948 (3) SA 99 (A) at 123; Wessels, Contract, ї 1956 ("[The rule] cuts the Gordian knot and arbitrarily determines against the stipulator"); Kerr, Contract, pp. 254 sq.; Joubert, Contract, pp. 63 sq. But cf. also the recent decision of Lawrence v. Kondotel Inns (Pty) Ltd. 1989 (1) SA 44 (D) 53 sq. There the contra proferentem rule was applied, without much ado, to an exemption clause which read: "All riders ride at their own risk: If any accident should occur, Kondotel... will not be held responsible." In the opinion of the court, this clause did not cover accidents arising from misconduct on the part of the animal (not convincing).

⁰⁸ However, the declaration of intention is void if made to a person who is aware of the mental reservation (ї 116, 2 BGB). This provision has been criticized as an unwarranted concession to the will theory of contract: Ernst Kramer, in: Münchener Kommentar, vol. I (2nd ed., 1984), ї 116, n. 8; but cf. Flume, A T, % 20, 1.

^╧ For details, see Karl Michaelis, "Scheingeschaft, verdecktes Geschäft und verkleidetes Geschäft im Gesetz und in der Rechtspraxis", in: Festschrift für Franz Wieacker (1978), pp. 444 sqq.

¹⁴³ This follows from the rule laid down in ї 133 BGB according to which the true intention of the parties must be sought. The validity of the disguised transaction depends on whether the normal rules existing for such transactions have been complied with; thus, for instance, a transaction must be neither illegal nor immoral, and any formal requirements that may exist must have been met.

may therefore have relied on its effectiveness. Such reliance needs protection. Hence a specific claim for compensation is provided for in ї 122 BGB.¹⁴▓

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. ≈ 1241 p.. 1992

1. її 116,117,118,122 BGB

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