ABSTRACT
Debates on how to promote greater fairness in the South African common law of contract traditionally focus on certain rules, for example the rule that the content or enforcement of a contract should not be contrary to public policy, or on the underlying principle or value of good faith. However, awareness has grown that the customary-law concept of ubuntu deserves greater recognition when developing the legal system in general, and the law of contract in particular. This essay enquires what role ubuntu could play in guiding courts when applying and developing various common-law rules aimed at promoting fairness. It is argued that in this development, good faith and ubuntu could stand next to each other as constitutional values, the one African and the other Western. Due to their shared focus on the interests of others, these values could act as counter-weights to individualism and personal autonomy. It is further argued that to ensure that ubuntu realises this potential, it may be beneficial to consider the experiences of legal systems that also had to grapple with challenges of developing concrete rules to promote a less individualistic and more ‘other-regarding’ law of contract. In seeking to promote fairness in the South African law of contract we may therefore be able to draw on a true diversity of sources.
