Article by Jacques du Plessis
There are indications that mixed legal systems are characterised by certain “patterns” of reception, which reflect that the common law generally influenced certain areas of law more than others. One of the most interesting questions raised in recent discussions about mixed legal systems is what factors possibly could have influenced or given rise to these patterns. To assist in answering this question, this Article examines various examples of common law influence in the areas of contract and unjustified enrichment, namely (1) causa and consideration; (2) promissory estoppel and reasonable reliance; (3) offer, acceptance, and the “mailbox” theory; (4) undue influence and good faith; (5) anticipatory breach and repudiation; (6) and the condictio indebiti. These examples reflect that at least five factors affect the extent of common law influence on these branches of law, namely (1) openness of the existing law to common law influence due to gaps; (2) openness of the existing law to common law influence due to perceived similarities with the common law; (3) divergences in the existing law which enable the common law to influence it to follow a particular direction; (4) the impact of the individual; and (5) social, economic, or cultural factors. In conclusion, certain observations are made about the quality of the law that arose from these processes of reception.
About the Author
Jacques du Plessis. Professor, Faculty of Law, University of Stellenbosch, South Africa. B. Comm. 1987, LL.B. 1989, LL.M. 1990, University of Stellenbosch, Ph.D. 1997, University of Aberdeen.
Citation
78 Tul. L. Rev. 219 (2003)