Dolus causam dans and dolus incidens

(a) The medieval distinction

The most important and, in the long run, influential contribution of the medieval lawyers to the doctrine of dolus lay in the distinction they drew between dolus causam dans and dolus incidens (dolus qui incidit in contractum).¹⁴⁵ It was summed up by Azo in the following words:

"De dolo malo dat causam contractui bonae fidei hoc est quia alias non erat contracturus nisi esset dolo inductus non tenet ipso iure contractus.

In both instances, the fraudulent behaviour must have caused the deception of the other party. That was inherent in Labeo's, and also in Servius', definition of dolus. But, whereas in the one case the innocent party¹⁴⁷ would not have contracted but for the fraud (so that the fraud could be said to have induced the fact that a contract had at all been concluded), dolus incidens merely concerned the terms of the contract, for instance the price: the innocent party would still have entered into the contract, but on different (i.e. better) terms. The glossators derived this distinction from an intricate and puzzling Digest fragment, attributed to Ulpian, which contained the phrase "... aut nullam esse venditionem, si in hoc ipso ut venderet [minor annis viginti quinque] circumscriptus est".¹⁴⁸ This was understood to indicate that, where the dolus had induced the vendor to sell, the contract of sale was ipso iure void. E contrario, then, the sale remained valid where the vendor had indeed intended to sell (in this instance:) the slave, but (again, in the example discussed in D. 4, 3, 7 pr.) without peculium. What the

“ Cf. Carcaterra. op. cit.. note 108. p. 164.

For details of the development cf. Brutri. op.

^I4' Azo, Summa Codicis, De dolo malo Rubrica.

¹⁴⁷ Where both parties have acted fraudulently, a kind of compensatio doli takes place; an application of the more general principle that an action cannot be brought by a person who has himself been guilty of behaviour tinged with turpitudo (nemo auditur turpitudinem suam allcgans). Cf. Marc. D. 4, 3, 36 "Si duo dolo malo fecerint, invicem de dolo non agent"; further Ulp. D. 44, 4, 4, 13; lul. D. 2, 10, 3. 3; Paul. D. 18, 1, 57, 3; Cluck, vol. 4, pp. 120 sqq. Cf. also infra, pp. 865 sq.

⁴ Ulp. D. 4, 3, 7 pr. For modern analyses of this text (which has often been regarded as being at least partly interpolated; cf. already Gerard Noodt, "De forma emendandi doli mali", in: Opera omnia (Lugduni Batavorum, 1724), Cap. XIV (pp. 377 sqq.), and many others, quoted by Gluck, vol. 4, p. 115), cf. J.C. van Oven, "D. 4, 3, 7 pr. Contribution a I'histoire du dol dans les conventions", in: Studi in onore di Emilio Albertario, vol. 1 (1953), pp. 273 sqq.; Stein, Fault, pp. 88 sqq.; Albanese, (1961) 28 Annali Palermo 187 sqq.; Hartkamp, op. cit., note 12, pp. 140 sqq.; Brutti, op. cit., note 99, pp. 18 sqq.; Wacke, (1977) 94 ZSS 236 sqq. distinction between dolus causam dans and dolus incidens¹⁴⁹ therefore sought to resolve, was the vexed question of the effects of dolus on a contract, more specifically: on a contract bonae fidei. Only dolus causam dans was taken to lead to its invalidity. If the dolus had merely been incidental to a contract of good faith, the transaction was not void, nor could the actio de dolo or the exceptio doli be resorted to: the appropriate bonae fidci iudicium itself (in the case of D. 4, 3, 7 pr.: the actio venditi) could be used to remedy the situation. Reason:

"... contractibus bonae fidei semper ipso iure inest actio et exceptio doli; adeoquc dolo probato, absolutio excipientis sequetur, aut agenti causa redintegrabitur."¹⁵⁰

With regard to contracts stricti iuris, on the other hand, the actio de dolo or exceptio doli were available irrespective of whether the dolus had been causam dans or incidens.

(b) Usus modernus and pandectists

This scheme of dealing with the effects of dolus, based as it was on the bonae fidei/stricti iuris division of contracts, survived for a surprisingly long time: it was still faithfully preserved by Roman-Dutch lawyers¹⁵¹ and authors of the German usus modernus.¹⁵² Only slowly did one realize that it had been overtaken by the development of a general law of contract:

"Voor het overige kunnen wy de verdecling der contracten, in die van goede trouw en strict recht al mede zeer wel missen, nadien volgens onze gewoontens alle contracten van goede trouw geacht worden. "^IS3

In the end, therefore, the regime applicable to bonae fidei contracts was bound to prevail. Here, however, the notion that a contract affected by fraud could be void had increasingly come under attack.¹⁵⁴ A consent obtained by fraud is still a valid consent, it was now argued;¹⁵⁵ the declaration of the defrauded party does reflect a will that really

^H" Which, according to Wacke, (1977) 94 ZSS 236 sqq. (Honscll/Mayer-Maly/Selb, p. 128 concurring), indeed finds its root in classical Roman law.

¹⁵¹¹ Voct, Commentarius ad Pandectas. Lib. IV, Tit. DI, IV.

¹⁵¹ Voet, Commentarius ad Pandectas. Lib. IV, Tit. DI, IH sqq.; Huber, Heedendaagse Recktsgeleertheyt. IV. Boek, XXXIX. Kap. For other Roman-Dutch authors, see Wouicr de Vos, "Skadevcrgoeding en terugtredc weens bedrog by kontraksluiting", 1964 Ada Juridica 28 sqq.

* Lauterbach, Collegium theoretico-practicum. Lib. IV, Tit. Ill, VI sqq.; Stryk, Usus modernus pandectamm. Lib. IV, Tit. DI, § 5; Struve, Syntagma. Exerc. 11X, Lib. IV, Tit. DI, XXVn sqq.

¹⁵³ Cornells Willem Decker, n. I ad Simon van Leeuwen, Het Roomsch Hotlandsche Recht {Amsteldam, 1783), IV. Bock, II. Deel, 1; cf. further e.g. Vinnius, Institutiones. Lib. IV, Tit. VI. 28; A.S. De Blccourt. H.F. W.D. Fischer. Kort heqrip van het oud-vaderlands bnrgerlijk recht (7th ed., 1959), p.

^b4 For a different view, see Noodt, op. cit., note 148, Cap. Ill sqq., who argued that all contracts bonae fidei affected by whatever kind of fraud were void. On Noodt's views cf. Brutti, op. cit., note 99, pp. 82 sqq.; G.C.JJ. van den Bergh, The Life and Work of Gerard Noodt (1647-1725), 1988, pp. 245 sqq.

¹⁵⁵ Cf. e.g. Pothier. Traite des obligations, n. 29. existed.¹⁵⁶ Quite apart from that, ipso iure invalidity implies that it may be invoked not only by the victim of the fraud, but also, if it suits him, by the defrauder—a result which can hardly be reconciled with the idea that a defrauder should never be allowed to benefit from his own dolus.¹⁵⁷ Hence it came to be recognized that the effect of fraud could be, at most, to render the contract voidable at the instance of the defrauded party.

But when was the defrauded party able to rescind the contract? It was in the context of this question that the old distinction between dolus causam dans and dolus incidens received renewed attention.¹⁵⁸ For it was clear that the defrauded party was able (apart from raising the exceptio doli) to bring the normal (bonae fidei) action available to him under the contract, in order to claim restitution. Restitution could, however, mean two different things: if it was to be assumed that the defrauded party would have refrained from entering into the contract, had he known the truth (dolus causam dans), he could ask to have the contract set aside and claim any further damages that he might have suffered. If, on the other hand, it could be established that the person sought to be defrauded would nevertheless have concluded the contract, albeit (for instance) for a lower purchase price (dolus incidens), there was no basis for a rescission of the contract: in this case the claim had to be limited to the amount by which the sum paid (or promised) on account of the fraud exceeded the sum the innocent party would otherwise have been prepared to give.

(c) Modern law

Today, the distinction between dolus causam dans and dolus incidens survives in South African law¹⁵⁹ and (via Pothier)¹⁶⁰ in the French code civil,¹⁶¹ but not in the German BGB. As in the case of metus, the drafters of the code civil employed the concept of relative nullity, where a contract is vitiated by fraud (dol):¹⁶² it may be invoked only by

^{15Vangerow, Pandekten, vol. Ill, pp. 274 sqq.}

2 Cf. e.g. Vangcrow, Pandekten, vol. DI, p. 275; Regelsberger, Pandekten, p. 537; Windscheid/Kipp. § 78.

■ There is, however, some doubt as to its significance. More particularly, the question has not been authoritatively settled whether the remedy of rescission is available to the defrauded party even in cases of incidental fraud. For details, see Gons v. De Kock. Combrinck v. De Kock (18871 5 SC 405; Vlotnian v. Landsberg (18901 7 SC 301; Karroo and Eastern Board of Executors and Trust Co. v. Farr 1921 AD 413; Lee. Introduction, pp. 226 sqq.; Wessels. Contract. vol. I, nn. 1097 sqq., 1126 sqq.; De Vos, 1964 Actajuridica 33 sqq.; Van Rcnsburg, Lotz, van Rhijn, "Contract", in: Joubert (ed.), The Law of South Africa, vol. 5(1978), n. 134.

^{1 0} Tratte des obligations, n. 31.

^lnl Cf. also §§ 871 sq.. 875 sq. ABGB.

¹⁶² Art. 1117.

the party for whose protection the law has declared the transaction invalid. However, this applies only "lorsque les manoeuvres piratiquees¹⁶³ par rune des parties sont telles, qu'il est evident que, sans ces manoeuvres, Vautre partie n'aurait pas contracts”^⁶⁴ Invalidity is thus confined to cases of dol principal (or substan(iel), whereas in case of a mere dol incident (or accidentel) the defrauded party may claim damages only, usually in the form of a reduction of the price.¹⁶⁵ According to § 123 BGB, a contract may be rescinded no matter whether it has been affected by dolus causam dans or dolus incidens; it is only required that the declaration of intention has been "induced" by the fraudulent behaviour.¹⁶⁶ The fathers of the BGB did not, however,

¹⁶³ The French code thus specifies the act by means of which the deceit must have been effected ("manoeuvres").

^1M Art. 1116; cf. also artt. 1439~sq. codice civile.

This distinction is criticized by Zweigert/Kotz, pp. 123 sq., but defended by Wacke, (1977) 94 ZSS 243 sqq.

¹⁶⁶ Strictly speaking, § 123 BGB requires "arglistige Täuschung" (fraudulent misrepresen­tation). This is usually understood to mean intentional deceit (absichtliche Täuschung, as in art. 28 OR). In other words, a simple (unlawful) lie (Zweigert/Kotz, p. 123) is sufficient to render the contract voidable. For details cf. Ulrich von Liibtow, "Zur Anfechtung von Willenserklärungen wegen arglistiger Täuschung", in: Festschrift für Horst Bartholomeyczik (1973), pp. 249 sqq.; Kramer, op. cit., note 98, § 123, n. 6. In modern South African law, the remedy of rescission of the contract is available to the victim of a fraudulent misrepresentation—a fraudulent misrepresentation being an intentional misstatement of an existing, material fact which was intended to induce, and did in tact induce, the innocent party to enter into the contract: see, for example, Kerr, Contract, p. 267. This remedy, based squarely on dolus, is of Roman and Roman-Dutch provenance. However, the innocent parry has also long been able to rescind the contract if the misrepresentation was "non- fraudulent", i.e. either negligent or innocent; see, for example, Dickson & Co. v. Levy 1894 (ID SC 33; Parke v. Hamman, 1907 TH 47; Sampson v, Union & Rhodesia Wholesale (in liquidation) 1929 AD 468 (480); Harper v. Webster 1956 (2) SA 495 (FC) at 501. This extension occurred under the influence of English law and, apparently, with no consideration of the issues involved. In this regard, see Joubert, Contract, pp. 92 sqq., 97 sq. It does not find a basis in Roman-Dutch law. For an extension of the exceptio doli to cases of dolus praesens (to cases, that is, where it was considered fraudulent to persist with a claim even though the claim itself may not have bad its origin in any fraudulent behaviour), cf. Johannes van der Linden, Supplenientum commentarii adpandectas (J. Voet) (Utrecht, 1793), Lib. IV, Tit. Ill, I want to deviate from the by then well-established doctrinal distinction. The Motive refer the reader to the rule relating to partial invalidity:'⁶⁷ a transaction affected by fraud may be partly rescinded only if it is to be assumed that the defrauded party would have concluded it even if the rescindable part had been omitted.¹⁶⁸ The claim of the defrauded party for damages is usually based, today, on the law of delict.^16y

The fate of the exceptio doli was closely connected with that of the stipulatio. With the demise of the latter¹⁷⁰ it was bound to fall into oblivion too. The modern theory of contract, as has repeatedly been stressed, descends from the consensual contracts of Roman law,¹⁷¹ and these were governed by the principle of bona fides. A specific procedural device in the form of an "exceptio" was thus no longer necessary in order to check the improper excercise of contractual rights; the judge had this discretion anyway.¹⁷² The substantive content of the exceptio doli, in other words, had been absorbed into the requirement of bona fides; and if the term "exceptio doli" continued to be used, it was tantamount to a recourse to the principle of good faith inherent in

(referring to Ulp. D. 44, 4, 2, 5); Karroo and Eastern Board of Executors and Trust Co. v. Farr 1921 AD 413 at 415; cf. also Joubert, Contract, p. 97.

¹⁶⁷ "Motive", in: Mn%dan, vol. I, p, 467; cf. also Wezel, op. cit. note 145, pp. 21 sqq.

^IflH §§ 123, 142, 139 BGB; cf. further Wacke, (1977) 94 ZSS 244 sq.; Wezel, op. cit.. note 145. pp. 28 sqq.

"■ In France § 1382 code civil is applicable; in Germany § 826 BGB and § 823 II BGB in connection with § 263 StGB (Kramer, op. cit., note 98, § 123, n. 30). In South Atrica it has always been recognized that a delictual remedy (viz. the actio doli: cf., for instance, De Wet en Yeats, p. 38) is available to claim damages flowing from fraudulent misrepresentations; certain difficulties have been experienced with regard to the calculation of damages in cases of dolus incidens; cf. Bill Harvey's Investment (Pty) Ltd. v. Oranjezicht Citrus Estates 1958 (1) SA 479 (A); Scheepers v. Handley 1960 (3) SA 54 (A); Dejager v. Gründer 1964 (1) SA 446 (A); Ranger v. Wykerd 1977 (2) SA 976 (A); De Vos, Ada Juridica 26 sqq. But the magna quaestio in South African law today is whether damages may also be claimed in cases of negligent misrepresentation. The traditional view is that they cannot: see, in particular, Hamman v. Moohnan 1968 (4) SA 340 (A); for criticism of this view as being illogical, indefensible in principle and alien to South African law, c{. the comprehensive references in Boberg, Delict, pp. 62 sq. However, in 1979 the Appellate Division took the momentous step of recognizing an action in delict for pure economic loss caused by a negligent misstatement (Administrates, Natal v. Trust Bank van Afrika, Bpk. 1979 (3) SA 824 (A)—see infra, p. 1042). In the wake of this decision (which was confined to negligent statements outside the field of contract) there was renewed hope that the delictual remedy would also be extended into the contractual field. This hope was indeed fulfilled, only two years after the Trust Bank case, by the Cape Provincial Division of the Supreme Court in Kern Trust (Edms.) Bpk. v. Hurter 1981 (3) SA 607 (C). Here Friedman J held (at 616F-G) that "... [there is] no sound reason based either in principle or logic, why an action [for damages] for negligent misstatement inducing a contract, should [be denied].... Such an action fits squarely in the confines of the lex Aquilia." The Kern Trust decision was enthusiastically welcomed by Dale Hutchison, (1981) 98 SALJ 486 sqq. In the meantime, the matter has been thrown into confusion, once again, by the recent decision of the Appellate Division of the Supreme Court in Lilticrap, H'assenaar and Partners v. Pilkington Brothers (SA) (Pty.) Ltd. 1985 (1) SA 475 (A) (see infra, p. 906), where a very restrictive attitude was adopted towards recognizing Aquilian liability "in a contractual setting" (at p. 500G).

¹⁷⁽¹ Cf. supra, pp. 546 sqq.

ⁿ Cf, for example, pp. 546 sq.

¹⁷² Cf, for example, Regelsberger, Pandekten, p. 686; Windscheid/Kipp, § 47, n. 7. the modern concept of contract. This is, essentially, still the position in modern German law, although the BGB itself would hardly lead the uninitiated reader to think so.¹⁷³ Its draftsmen had adopted a very cautious attitude;¹⁷⁴ nowhere did they expressly state that the exercise of contractual rights is subject to the principles of good faith. The standard of "good faith" appears only in a, seemingly, rather marginal provision (§ 242), where it relates specifically to the manner in which an obligation has to be performed.¹⁷⁵ Soon, however, the courts seized upon the rule and converted it into a general clause governing, and transforming, the whole of the German law of contract. It has provided a convenient starting point for countless new doctrines and for the modification, subversion or abrogation of old ones, in innumerable cases it has been resorted to in order to avoid harsh or inequitable results and it has often even been regarded as the magic wand¹⁷⁶ with which to eliminate any hardship in the world of private law. By 1961 the details of the application of this simple rule had reached such a degree of complexity that a standard commentary on the BGB devoted a whole volume of about 1 400 pages, predominantly in small print, to the compilation, classification and analysis of the rules and institutions derived from it.¹⁷⁷ Much criticism has, over the years, been levelled at the excessive proliferation of equitable inroads into established legal principles.¹⁷⁸ On the other hand, however, consensus has emerged over certain legitimate extensions of the principle enunciated in § 242 BGB; they have become so firmly established that they are seen today to form an indispensable part of the modern legal landscape.¹⁷⁹ One of those is the doctrine of the improper exercise of a right ("Lehre von der

¹⁷³ Cf.. for example, the discussion as to whether, even after the enactment of the BGB. the exceptio doli continued to exist, by Windscheid/Kipp, vol. I, pp. 214 sqq.

^m "Protokolle", in: Mugdan, vol. I, pp. 796 sq.; for further examples of a similarly cautious attitude (firm and stable legal rules must not be replaced by equitable judicial discretion), cf. Fritz Rittner, "Ermessensfreiheit und Billigkeitsspielraum des Zivilrichiers im deutschen Recht", in: Ermessensfreiheit und BiUigkeits Spielraum des Zivitrichters, vol. 24 of Arbeiten zur Recht sv er gl ei chung (1964), pp. 32 sq.

On which, see "Protokolle", in: Mugdan, vol. II, pp. 521 sqq. and Rudolf Henle, Treu und Glauben irn Rechtsverkehr (1912), pp. 30 sq.

"Prdtorische Zauberformel'"', Bruno Heusinger, Rechtsfindung und Rechtsfortbildung im Spiegel richterlicher Erfahrung (1975), pp. 109 sq.

^I7V Wilhelm Weber, in: Staudinger (1 Ith cd., 1961), § 242.

For very strong, and early, criticism in this regard, cf. Henle, op, cit., note 175, pp.

3 sqq. ("Diese Bestimmung mil ihrem redlichen Biedermannsgesicht ist zum Triiger einer unheilvollen Seuchegeworden, die am Mark unseres Rechtslebens vergiftend zehrt." This provision has become, behind its mask of honesty, uprightness and trustworthiness, the source of a baneful pestilence, gnawing in a most sinister manner at the inner core of our legal culture). Cf. also the warnings by Justus Wilhelm Hedemann, Die Flutht in die Generalklauseln, Eine Gefahrjur Recht und Staat (1933) (still a classic).

^ra Cf., in particular, the influential study by Franz Wieacker, Zur rechtstheoretischen Präzisierung des § 242 BGB (1956); today, for example, Gunther H. Roth, in: Münchener Kommentar, vol. II (2nd ed., 1985), § 242, nn. 12 sqq., 52 sqq., 106 sqq. Generally on the problem of judge-made law in a codified system, from a constitutional point of view, cf. BVerfGE 34, 269 (286).

unzuldssigen Rechtsausiibung") in its various emanations.¹⁸⁰ It is this doctrine into which the "productive force of the exceptio doli"¹⁸¹ has been channelled in modern German law.

A lively discussion whether the exceptio doli, as such, still exists in modern law has taken place in South Africa. Until recently, academic opinion was divided as to its existence and applicability. Some writers, including the influential Professor J.C. de Wet of Stellenbosch,¹⁸² took a sharply negative attitude. Others were strongly in favour of it. A.J. Kerr called it "an outstanding example of equity at work".¹⁸³ The South African courts, too, failed for a long time to adopt a uniform approach; some judges expressed great scepticism as to the survival of the exceptio doli,¹⁸⁴ others merely assumed its existence,¹⁸⁵ while still others came out strongly and unambiguously in favour of it. In Sonday p. Surrey Estate Modem Meat Market (Pty.) Ltd.,™^ Tebbutt J went as far as to declare it to be

"clear... that [the exceptio doli] has been accepted as part of our law, both by Provincial Divisions as well as the Appellate Division".

In the recent case of Bank of Lisbon and South Africa Ltd. v. De Ornelas,¹⁸⁷ the South African Appellate Division has, however, ultimately attempted to settle the matter. In an extraordinary judgment,¹⁸⁸ Joubert JA (speaking for the majority) embarked on a

^H) Roth, op. at., note 179, § 242, nn. 224 sqq.

^H Dernburg, Pandekten. vol. I, § 138, 4 in fine.

182 "E_st(ppJ (.y Representation" in die Suid-AJrikaanse reg (1939), pp. 83 sqq.

¹⁸ Kerr, Contract, p. 137. For further comment, see, for example, P.J. Aronstam, "Unconscionable contracts: The South African solution?", (1979) 42 THRHR 21 sqq.; A.D. Botha, "Die exceptio doli generahs, rektifikasie en estoppel", (1980) 43 THRHR 255 sqq.; C.F.C. van der Walt, "Die huidige posisie in die Suid-Afrikaanse reg met betrekking tot onbillike kontraksbedinge", (1986) 103 SALJ 646 sqq.

^M Cf e.g. Aris Enterprises (Finance) (Pty.) Ltd. v. Waterberg Koetkamers (Pty.) Ild. 19T1 (2) SA 436 (T) at 437G-438C; Novick v. Comair Holdings Ltd. 1979 (2) SA 116 (W) at 156B-157B.

^B Paddock Motors (Pty.) Ltd. v. Igesund 1976 (3) SA 16 (A) at 27H-28F; ZuurbekomLtd. v. Union Corporation Ltd. 1947 (1) SA 514 (A) at 535-7.

^K 1983 (2) SA 521 (C) at 530H.

¹⁸⁷ 1988 (3) SA 580 (A).

To which (Judge) Alvin B. Rubin's remark, aimed at the American judiciary, would appear to apply; "Let me mention one other time-consuming task of judges that appears to me to be an obsessive preoccupation. It is our concern, particularly at the appellate level, with trying to write the kind of opinion that we think law school teachers will consider scholarly" ("Bureaucratization of the Federal Courts, The Tension Between Justice and Efficiency", (1979-80) 55 Notre Dame Lawyer 655). In the Bank of Lisbon case, Joubert JA took the opportunity to join the academic battlefield and to pass judgment, not only on the question of the existence of the exceptio doli in South African law, but also on the merit of the contributions of other academic writers. J.C. de Wet's doctoral thesis found favour in Joubert JAs eyes ("... as De Wet correctly pointed out" (p. 598A}), but the unpublished (!) thesis of a relatively junior academic from Bloemfontein became the object of severe criticism ("These views of Botha are untenable and must be rejected..." (p. 604E); "They would seem to be pure speculation on his part" (p. 605C); "He also overlooked the fact that..." (p. 605C); all in all, more than 100 lines of the reported judgment are devoted to a detailed analysis of Roman and Roman-Dutch sources on the basis of which he came to the conclusion that "the raison d'etre of the exceptio doli generalis had disappeared in the law of contract at the end of the Middle Ages"¹⁸⁹ and that therefore

"[a]ll things considered, the time has now arrived... once and for all, to bury the exceptio doli generalis as a superfluous, defunct anachronism. Requiescat in pace".¹⁹⁰

It is, however, rather doubtful, whether the "productive force" of the exceptio doli can in fact be quelled that easily, particularly if one denies, as Joubert JA does,¹⁹¹ that the underlying equitable principles were incorporated, under the aegis of bona fides, into classical Roman-Dutch and (consequently) modern South African law. The exceptio doli may well, therefore, haunt the courts and legal writers from its grave.¹⁹²

discussion of Botha's views). For a comparative analysis of citation practices by appellate courts, see Hein Kotz, (1988) 52 RabetiZ 644 sqq. (where a fuller extract from Rubin's article appears on p. 657).

® 1988 (3) SA 580 (A) at 605D.

®° At 607A-Â.

^H At 605B-F and 609I-610E; but see 599A-B read together with the statement on p. 596 H; d. also jansen JA, on p. 616 C.

¹⁹¹ Cf also Jansen JA in his dissenting opinion (at pp. 611 sqq.). He argues that the exceptio doli generatis still constitutes a substantive defence in modern South African law, based on the sense of justice of the community. Jansen's views are criticized, unusually severely, by joubert JA ("His explanation... is, with respect, entirely unacceptable. It tails to take cognizance of the fact.... There is... not a scintilla of evidence... not supported by any authoritative Roman-Dutch legal sources.... He also, with respect, overlooks the fact..." (at 609G-610A)}. For further comment on the Bank of Lisbon case, see Michael A. Lambiris, "The Exceptio Doli Generalis: An Obituary", (1988) 105 SAL/644 sqq.