Causa and consideration in South African law

(a) The reception of (he consideration doctrine

Both cause and consideration are refined legal doctrines which have developed, from a common source, in their own individual way.

In the course of the 19th century the term "iusta causa" came to be translated as "consideration"; and the term "consideration", not unnaturally, was very soon equated with the English doctrine of valuable consideration.^[2855] In the first two decades of this century the question whether iusta causa, as understood by the classical Roman- Dutch lawyers, was or was not distinguishable from the consideration of English law, became the great cause celebre of contractual theory, with the two most influential judges of their time as protagonists. J.G. Kotze, Anthony Trollope's "boy judge",^[2856] the man who shaped the early history of the Transvaal Supreme Court, advocated the former position, while Lord De Villiers, who reigned as Chief Justice for 41 years—first of the Cape, then, since its inception, of the Union of South Africa^[2857]—took the rule of the "besoedelaar" or "pollutionist".^[2858] In Rood v. Wallach^[2859] and Mtembu v. Webster^[2860] this clash of judicial opinion came to a head.

(b) lusta causa and Grotius' notion of "redeiicke oorzaecke"

It appears to be clear that Lord De Villiers was wrong in equating causa and consideration.^[2864] It is a far cry from Brother Baptista's garland of sweet-smelling roses to the refined and technical doctrine of consider­ation worked out over the centuries by the English courts. Continental causa and English consideration have developed in different directions, and the latter never formed part of the Roman-Dutch law of Holland. On the other hand, Kotze^[2865] and his followers were probably not right either.

"It may, indeed, be doubted whether the doctrine of causa really occupied the important place in the Roman-Dutch law which has been assigned to it in modern discussions",

says Lee,^[2866] and this is putting it mildly. Causa as an independent requirement for promissory transactions was on the way out in Germany, as it was in the Netherlands.^[2867] One of the main sources, always brought up in the debate, is Grotius' Inleiding. We have already referred to the famous passage where he makes mention of the "redelicke oorzaecken".^[2868] But the context in which this term appears is a rather peculiar one. In his Inleiding Grotius distinguishes between obligations arising from toezegging (promise) and from onevenheid (inequality).^[2869] A toezegging is either "uitdruckelick" (express) or "door wetduiding" (implied by law).^{[2870] [2871] Express promise, in turn, is "door woorden, of schrift", i.e.}