The exceptio doli generalis – back again?

Abstract

Before it was abolished in 1988 (the court in Bank of Lisbon and South Africa v De Ornelas 1988 (3) 580 (A) held that the exceptio should never have been accepted as part of our law), a party to a contract could avoid contractual liability based on the bad faith (in other words the reprehensible or unconscionable conduct of the other party to the contract) by raising a specific defence, the exceptio doli generalis (exceptio doli).