The golden rule applicable to the interpretation of all contracts is to ascertain and to follow the intention of the parties; and, if the contract itself, or any evidence admissible under the circumstances, affords a definite indication of the meaning of the contracting parties, then it seems to me that a Court should always give effect to that meaning.[2]
Effect must be given, in other words, to the parties' common intention: "that is to say, to what both of them intended upon entering into the contract, and not to what the one or the other had in the back of his or her mind."[3] This dictum suggests that the courts take a "factual or historical-psychological approach to interpretation, i.e. one which seeks to establish the intention of the parties as a fact existing at the time of contracting."[4] This more or less accords with the subjective and consensual basis of the rest of the South African law of contract,[5] but it gives rise to a paradox, since the subjective intentions of the parties must be established with reference to certain objective factors,[6] most obviously the words printed on the contract.
References
Books
Du Plessis, Jacques, et al. The Law of Contract in South Africa. Edited by Dale Hutchison, Chris-James Pretorius, Mark Townsend and Helena Janisch. Cape Town, Western Cape: Oxford University Press, 2010.
Lubbe, GF, and CM Murray. Farlam and Hathaway Contract: Cases, Materials and Commentary. 3rd Edition. Lubbe & Murray, 1988.
joubert, enslin, important, case, south, african, contract, heard, cape, town, appellate, division, july, 1910, contents, golden, rule, interpretation, references, books, cases, notesgolden, rule, interpretation, editthe, case, famous, primarily, articulation,. Joubert v Enslin 1 is an important case in South African contract law heard in the Cape Town Appellate Division on July 8 9 and 22 1910 Contents 1 Golden rule of interpretation 2 References 2 1 Books 2 2 Cases 3 NotesGolden rule of interpretation EditThe case is famous primarily for its articulation of the fundamental precept of contractual interpretation in South Africa The golden rule applicable to the interpretation of all contracts is to ascertain and to follow the intention of the parties and if the contract itself or any evidence admissible under the circumstances affords a definite indication of the meaning of the contracting parties then it seems to me that a Court should always give effect to that meaning 2 Effect must be given in other words to the parties common intention that is to say to what both of them intended upon entering into the contract and not to what the one or the other had in the back of his or her mind 3 This dictum suggests that the courts take a factual or historical psychological approach to interpretation i e one which seeks to establish the intention of the parties as a fact existing at the time of contracting 4 This more or less accords with the subjective and consensual basis of the rest of the South African law of contract 5 but it gives rise to a paradox since the subjective intentions of the parties must be established with reference to certain objective factors 6 most obviously the words printed on the contract References EditBooks Edit Du Plessis Jacques et al The Law of Contract in South Africa Edited by Dale Hutchison Chris James Pretorius Mark Townsend and Helena Janisch Cape Town Western Cape Oxford University Press 2010 Lubbe GF and CM Murray Farlam and Hathaway Contract Cases Materials and Commentary 3rd Edition Lubbe amp Murray 1988 Cases Edit Joubert v Enslin 1910 AD 6 Saambou Nasionale Bouvereniging v Friedman 1979 3 SA 978 A Notes Edit 1910 AD 6 37 38 Du Plessis et al 253 Lubbe amp Murray 451 Saambou Nasionale Bouvereniging v Friedman 1979 3 SA 978 A Du Plessis et al 268 This article relating to case law in South Africa is a stub You can help Wikipedia by expanding it vte Retrieved from https en wikipedia org w index php title Joubert v Enslin amp oldid 1084893917, wikipedia, wiki, book, books, library,
