The significance of consensus in the Law of Contract

Abstract

This dissertation explores various legal theories, doctrines, and principles on consensus, and, to this end, highlights the significance of consensus, being one of the requirements for a valid contract, as the basis for contractual liability in South Africa. It, further, canvasses, the significance of consensus on the interpretation of contracts, with particular focus on the prima facie misalignment between the primarily subjective nature of consensus as the basis for contractual liability versus the objective approach to interpretation of contracts in the South African legal system. To the latter end, this dissertation further traverses the question of whether the possible misalignment, between the basis for contractual liability and contractual interpretation, justifies constitutional development of the law relating to interpretation of contracts. Lastly, the dissertation focuses on legal considerations that a drafter must consider, in order to ensure that a contractual instrument is not only legally sound, but also facilitates the enforcement of the parties’ subjective common intention, even when interpreted objectively.