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Lex Mercatoria : does the law merchant apply in the South African law of contract?
Mini-dissertation (LLM (Private Law))--University of Pretoria, 2024.
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| Format: | Thesis |
| Language: | English |
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University of Pretoria
2025
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| _version_ | 1867613480673083392 |
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| access_status_str | Open Access |
| author2 | Cornelius, Steve J. |
| author_browse | Cornelius, Steve J. |
| author_facet | Cornelius, Steve J. |
| collection | Thesis |
| dc_rights_str_mv | © 2024 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Mini-dissertation (LLM (Private Law))--University of Pretoria, 2024. |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/101923 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:36:49.486Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2025 |
| publishDateRange | 2025 |
| publishDateSort | 2025 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/101923 Lex Mercatoria : does the law merchant apply in the South African law of contract? Cornelius, Steve J. u15133682@tuks.co.za Deonarain, Kiara UCTD Implied terms Law merchant Lex mercatoria Contract law Arbitration Mini-dissertation (LLM (Private Law))--University of Pretoria, 2024. The South African law of contract, which is rooted in Roman-Dutch law, aims to provide a legal framework that regulates the relationship of parties to a contract as they enter into business transactions and trade in goods and services with the peace of mind that the law will uphold their rights and protect their interests. A widely accepted principle in contract law is that the parties may choose which system of law should govern the terms of the contract, especially where there is an international element to the agreement. However, parties may, for various reasons, choose to disregard the national laws that would have been applicable and may rather opt for the general principles, customs and usages and trade norms practiced in a particular trade, such as the general principles of International Trade Law. These general principles are known as the lex mercatoria, or the law merchant. This legal phenomenon has subsisted for many years and the simple act of trading on mutually accepted customs is as old as time. In Medieval times, merchants travelled around the world, taking their customs and usages with them and, over time, this led to the development of the customs and usages into generally accepted principles applied in particular trade industries. Unfortunately, it disappeared when there were attempts to nationalise International Trade Law. The law merchant reappeared as the new lex mercatoria in the mid-20th century and evolved as the world saw an increase in international trade yet again. The history, as well as the sources of the lex mercatoria have continuously been a point of contention. This has resulted in various theories being put forward by proponents and critics of the law merchant with each school offering convincing arguments as to whether or not the law merchant still exists and whether it can be regarded as an independent legal system that should be applied to contracts and other legal agreements. Despite being shrouded in controversy, there have been many debates as to whether parties should be allowed to choose it as the applicable law. Does the law merchant have the ability to sufficiently govern a contract without the need for national law to intervene? What is its relationship with the national laws of a country? The answers to the questions posed above may be found in the sources from which the lex mercatoria is derived. These various sources, which include international instruments, are paramount to understanding how this a-national, seemingly uncodified body of rules has previously been applied and how it may, in turn, currently impact the South African contract law. Considering the above, this research attempts to define and detail the lex mercatoria throughout the years. further explores the debate between the opposing schools of thought by analysing the conflicting statements to determine whether each argument has merit. Furthermore, the study will look at the South African law of contract and set out the basic principles of contract as provided for in the legal framework. In doing so, it attempts to connect and link the sources of the law merchant to contract law and provide recommendations on whether the lex mercatoria should be applied in a South African context and if so, how we should attempt to resolve any inconsistencies in its interpretation and application. Private Law LLM (Private Law) Unrestricted Faculty of Laws SDG-17: Partnerships for the goals 2025-04-08T13:04:02Z 2025-04-08T13:04:02Z 2025-09 2024-10 Mini Dissertation * S2025 http://hdl.handle.net/2263/101923 https://doi.org/10.25403/UPresearchdata.28748831 en © 2024 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD Implied terms Law merchant Lex mercatoria Contract law Arbitration Lex Mercatoria : does the law merchant apply in the South African law of contract? |
| title | Lex Mercatoria : does the law merchant apply in the South African law of contract? |
| title_full | Lex Mercatoria : does the law merchant apply in the South African law of contract? |
| title_fullStr | Lex Mercatoria : does the law merchant apply in the South African law of contract? |
| title_full_unstemmed | Lex Mercatoria : does the law merchant apply in the South African law of contract? |
| title_short | Lex Mercatoria : does the law merchant apply in the South African law of contract? |
| title_sort | lex mercatoria does the law merchant apply in the south african law of contract |
| topic | UCTD Implied terms Law merchant Lex mercatoria Contract law Arbitration |
| url | http://hdl.handle.net/2263/101923 https://doi.org/10.25403/UPresearchdata.28748831 |