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The Pactum De Non Cedendo: through a constitutional lens
The aim of this paper was to determine whether the current South African law governing the doctrine of pacta de non cedendo complies with the constitutional mandates imposed by our Constitution. In terms of the current law a pactum de non cedendo will only be accorded validity if the debtor is able...
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| Format: | Thesis |
| Language: | English |
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Department of Private Law
2017
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| _version_ | 1867613188749524992 |
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| access_status_str | Open Access |
| author | Abrahams, Ebrahim |
| author2 | Hutchison, Dale |
| author_browse | Abrahams, Ebrahim Hutchison, Dale |
| author_facet | Hutchison, Dale Abrahams, Ebrahim |
| author_sort | Abrahams, Ebrahim |
| collection | Thesis |
| description | The aim of this paper was to determine whether the current South African law governing the doctrine of pacta de non cedendo complies with the constitutional mandates imposed by our Constitution. In terms of the current law a pactum de non cedendo will only be accorded validity if the debtor is able to demonstrate a substantial interest in the prohibition against cession. However, the interest requirement is only applicable when a pactum de non cedendo is superimposed onto a pre-existing right, and is not required when a right is born ab initio with a prohibition on transfer. In my opinion the current law falls short of the "spirit, purport and objects of the Bill of Rights", as required by s 39(2) of the Constitution, and is therefore, in need of development. In this paper I propose the following development: Firstly, by requiring the debtor to prove an interest that is served by the pactum de non cedendo, in certain circumstances, the law undermines the value of equality held so dearly by our society. This is because no such requirement exists when other types of restrictive clauses are concluded. It is my contention that the "interest requirement" be relegated from being a free-standing requirement to simply being another factor to be taken into account when conducting the public policy enquiry. Secondly, pacta de non cedendo appearing in book debts and other similar monetary obligations should always be held contrary to public policy due to the importance of the free flow of claims in commerce, specifically, the factoring and securitisation industries. Factoring plays a crucial role in the world economy, the most advantageous aspect of factoring is that small to medium size businesses may obtain much needed finance by selling their claims to a factoring house. Lastly, the current distinction drawn between a pactum de non cedendo that is superimposed onto a pre-existing right, and a right that is created with a pactum de non cedendo is artificial and illogical, the correct distinction that should be drawn is between a pactum de non cedendo that is concluded by the debtor and creditor on the one hand, and between a pactum de non cedendo concluded between the cedent and cessionary on the other. |
| format | Thesis |
| id | oai:open.uct.ac.za:11427/24992 |
| institution | University of Cape Town (South Africa) |
| language | eng |
| last_indexed | 2026-06-10T12:32:11.035Z |
| license_str | Not specified — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UCTD — University of Cape Town Open Access Repository |
| publishDate | 2017 |
| publishDateRange | 2017 |
| publishDateSort | 2017 |
| publisher | Department of Private Law |
| publisherStr | Department of Private Law |
| record_format | dspace |
| source_str | UCTD — University of Cape Town Open Access Repository |
| spelling | oai:open.uct.ac.za:11427/24992 The Pactum De Non Cedendo: through a constitutional lens Abrahams, Ebrahim Hutchison, Dale Private Law and Human Rights The aim of this paper was to determine whether the current South African law governing the doctrine of pacta de non cedendo complies with the constitutional mandates imposed by our Constitution. In terms of the current law a pactum de non cedendo will only be accorded validity if the debtor is able to demonstrate a substantial interest in the prohibition against cession. However, the interest requirement is only applicable when a pactum de non cedendo is superimposed onto a pre-existing right, and is not required when a right is born ab initio with a prohibition on transfer. In my opinion the current law falls short of the "spirit, purport and objects of the Bill of Rights", as required by s 39(2) of the Constitution, and is therefore, in need of development. In this paper I propose the following development: Firstly, by requiring the debtor to prove an interest that is served by the pactum de non cedendo, in certain circumstances, the law undermines the value of equality held so dearly by our society. This is because no such requirement exists when other types of restrictive clauses are concluded. It is my contention that the "interest requirement" be relegated from being a free-standing requirement to simply being another factor to be taken into account when conducting the public policy enquiry. Secondly, pacta de non cedendo appearing in book debts and other similar monetary obligations should always be held contrary to public policy due to the importance of the free flow of claims in commerce, specifically, the factoring and securitisation industries. Factoring plays a crucial role in the world economy, the most advantageous aspect of factoring is that small to medium size businesses may obtain much needed finance by selling their claims to a factoring house. Lastly, the current distinction drawn between a pactum de non cedendo that is superimposed onto a pre-existing right, and a right that is created with a pactum de non cedendo is artificial and illogical, the correct distinction that should be drawn is between a pactum de non cedendo that is concluded by the debtor and creditor on the one hand, and between a pactum de non cedendo concluded between the cedent and cessionary on the other. 2017-08-28T13:12:50Z 2017-08-28T13:12:50Z 2017 Master Thesis Masters LLM http://hdl.handle.net/11427/24992 eng application/pdf Department of Private Law Faculty of Law University of Cape Town |
| spellingShingle | Private Law and Human Rights Abrahams, Ebrahim The Pactum De Non Cedendo: through a constitutional lens |
| thesis_degree_str | Master's |
| title | The Pactum De Non Cedendo: through a constitutional lens |
| title_full | The Pactum De Non Cedendo: through a constitutional lens |
| title_fullStr | The Pactum De Non Cedendo: through a constitutional lens |
| title_full_unstemmed | The Pactum De Non Cedendo: through a constitutional lens |
| title_short | The Pactum De Non Cedendo: through a constitutional lens |
| title_sort | pactum de non cedendo through a constitutional lens |
| topic | Private Law and Human Rights |
| url | http://hdl.handle.net/11427/24992 |
| work_keys_str_mv | AT abrahamsebrahim thepactumdenoncedendothroughaconstitutionallens AT abrahamsebrahim pactumdenoncedendothroughaconstitutionallens |