THE COMMON-LAW AUTHORS ON CONTRACTUAL CAPACITY IN PRIVATE INTERNATIONAL LAW

Abstract

Contractual capacity in private international law concerns the law applicable to the competence of a natural person to create rights and duties by concluding a contract with another (natural or juristic) person or persons. Sometimes it is implied that contractual capacity is no longer such an important issue in private international law due to, for instance, the emancipation of married women. However, it is suggested that this development indeed increases the relevance of the topic, as today a husband’s contractual capacity could be dependent on the consent of his spouse, while a century ago this was invariably the position only in respect of the wife’s contractual capacity. In any event, there may be many non-Western legal systems where a married women’s contractual capacity remains limited. In respect of the age of majority, it is true that many legal systems now accept 18 years as the legal age. Nevertheless, a substantial minority of legal systems adhere to ages above or below. Contractual capacity may also be affected by mental illness, curatorship (for instance, in the case of prodigality and insolvency) or emancipation. It is therefore clear that contractual capacity continues to play an important role in private international law.
Nonetheless, the law in this regard is far from clear in South Africa. There is authority in case law for the lex rei sitae or the lex situs (the law of the country where the property is situated) to govern capacity in contracts involving immovable property. In respect of other contracts, the courts have applied the lex domicilii (the law of the country of domicile), the lex loci contractus (the law of the country where the contract is concluded) and the (putative) (objective) proper law of the relevant contract. A clear choice between these legal systems has not yet crystallised. There is also no Supreme Court of Appeal (nor Constitutional Court) decision in this regard and therefore no binding authority.
An investigation of the views held by the common-law authors on contractual capacity in private international law may therefore prove valuable in addressing the issue. An analysis is offered in the concluding remarks on whether the views held by the authors have been received in South African case law.