Condition, lex commissoria and rescission in South African law

Both the notion of "time is of the essence" and that of the notice of rescission have, incidentally, percolated into South African law. Despite an old Dutch custom in favour of a right of rescission in case of delay of performance,^[4141] the Roman-Dutch writers (unlike their French counterparts) stuck to the principle of Roman law.

. ob pretium non solutum non recte venditor contendit ad emptionis dissolutionem, reiquc jam per traditionem translatae restitutionem; sed magis ad implementum ejus cxperiendum est... nisi ab initio id nominatim convenerit, ut ab emptione ob moram in ca implenda factam recederc liceat".¹⁵⁷

When, therefore, the South African courts started looking for a basis upon which to grant disappointed creditors the right to rescind the contract, the traditional sources of Roman-Dutch law did not provide much inspiration. Not that great efforts were made to analyse these sources; for those were the days of the "pollutionists",¹⁵⁸ who did not hesitate to draw on English law whenever that appeared to be convenient. The theoretical foundations of such reception were usually somewhat fragile: a scanty remark to the effect that the "general rule of English law and... of Roman-Dutch Jurisprudence" have always been the same¹⁵⁹ could do the trick. It was blatantly wrong in the present case; but by the time the "purists" exposed such mistaken assumptions, the English doctrine had often firmly taken root. All one could do, under those circumstances, was to sort out the doctrinal confusion that almost invariably arose as a consequence of such a development and to integrate the new institution as harmoniously as possible into the framework of the Roman-Dutch ius commune.

¹³⁷ Commentarius ad Pandectas, Lib. XIX. Cap. I. XXI; cf. further Van Zijl Steyn, op. cit.. note 72, pp. 95 sqq.; De Wet en Yeats, p. 148.

On the South African bellum iuridieum — concerning the proper sources of the common law—between pollutionists, purists, antiquarians and pragmatists, see Reinhard Zimmermann, "Synthesis in South African Private Law: Civil Law, Common Law and Usus Hodiernus Pandectarum", (1986) 103 SAL] 259 sqq.

^¹ Cf., in the present context, Mitchell v. Howard Farrar & Co. (1886) 5 EDC 131 at 140 (per Barry JP). Generally cf. Reinhard Zimmermann, "Die Rechtsprechung des Supreme Court of the Cape of Good Hope am Ende der sechziger Jahre des 19. Jahrhunderts", in: Huldigingsbundel Paul von Warmelo (1984), pp. 286 sqq. In other cases relating to the right of rescission on account of mora Pofhier has been referred to; cf. Radue v. Kitsch 1920 OPD 181 at 186; Lewis & Co. v. Malkin 1926 TPD 665 at 670.

¹⁶¹¹ Cf, for example, Wehr v. Botha 1965 (3) SA 46 (A) at 59 sqq.; Stapleford Estates (Ply.) Ltd. v.

¹⁶¹ 1904 TS 483; cf further Benoni Produce & Coal Co. Ltd. v. Gundelfingen 1918 TPD 453; Graf& Co. v. Bassa (1925) 46 NLR 2, and other decisions; cf. also Broderick Properties Ltd. v. KowM962(4) SA 447 (T) (on which, see De Vos. (1970) 87 SAL] 314 sqq.; A.J. Kerr. (1978) 95 SAL] 143 sqq.).

(b) no interpellatio occurred (i.e.: there is no mor a ex persona) and (c) no notice of rescission was given to the debtor (i.e. time was, strictly speaking, not made "of the essence" of the contract). For a long time, mora debitoris could thus be described as "een van die verwaarloosde onderdele van [die Suid-Afrikaanse] reg",^[4142] characterized, as a result, by "endless controversy"^[4143] and "complete... confusion".^{[4144] [4145] [4146] Today it is widely recognized11"15 that a right of rescission can arise only where the debtor is guilty of mora. Where no time for performance has been specified, an interpellatio is therefore required. In addition, the contract must either contain a lex commissoria or time must be made "of the essence" by way of a notice of rescission.161' The lex commissoria does not have to be expressly agreed upon. Where a specific time has been fixed by the parties and where this time, in their view, is essential for the performance of the contract (as is, for instance, usually the case in commercial transactions), it may be read into the transaction.[4147] A notice of rescission is required whenever there is neither an express nor an implied lex commissoria; that is, irrespective of whether we are dealing with mora ex re or mora ex persona. In the case of mora ex persona it may be combined with the interpellatio, but conceptually the two declarations have to be kept apart.[4148] [4149] [4150]-16}

IV.