The legal nature of performance reconsidered
| Author | Botha, F. |
| Date | 15 May 2020 |
| Pages | 246-268 |
| Published date | 15 May 2020 |
246
THE LEGAL NATURE OF
PERFOR MANCE RECONSIDERED*
FERDINA ND BOTHA†
Researcher, Max Plan ck Institute for Comparative and
International Private Law
South Afric an law regards the perform ance of a legal obligation as a bilat eral act which
requires the co- operation and agre ement of the debtor an d the creditor. In addition to
the actual ac t of performance, the de btor must therefore also enter in to a so-called debt-
extinguishing agr eement with the cr editor before the debtor w ill be released from th e
obligation. It is argu ed that this approac h is outdated from a comp arative perspecti ve
and that it tends to hi nder, rather than assist, t he courts in resolv ing disputes.
The sugg estion is made that South Afric a should adopt the so-called real pe rformance
theory from G erman law inste ad. This theory a sks only whether a pa rticular act
of perform ance can be assig ned to a certain obl igation and does not requir e a debt-
extinguishing agr eement for a debtor to be rel eased from the obligatio n.
Legal obl igation – per forma nce – agreement t heory – real p erforma nce
theory
I IN TROD UCT ION
What does it mea n to say that a lega l obligation h as been perfor med?
In lay term s one might say tha t to perform an o bligation si mply means
to do what one is supposed to d o. For example, if a person bu ys goods
from a grocer y store, the buyer is sa id to have performed t he obligation
to pay for the goods when the money h as been handed over to t he seller.
Where payment ha s occurred , it follows that the buyer’s oblig ation has
been extin guished or d ischarged.
Curiously, South A frican law sub scribes to a d ierent account. The
standa rd view is stated a s follows:
‘Perform ance of an oblig ation is usua lly a bilateral ju ral act which r equires
the co-oper ation and ag reement of both debtor a nd creditor.’1
* This ar ticle was or igina lly writ ten as a dis sertation i n the nal ye ar of my
LLB degre e at Stellenbos ch University. I am in debted to my super visor, Prof
Jacques du Pless is, for his adv ice and comment s on an earlie r draft. I a m also
gratef ul to Andr ew Sweeney for proofread ing the n al draf t. Any rema ining
errors a re my own.
† BA (Hons) LLB (Stellenb osch).
1 L T C Har ms ‘Obligations’ in W A Joube rt & J A Faris Th e Law of South Afric a
vol 19 2nd replacement ed (2016) para 2 37. See also Matador Buildi ngs (Pty) Ltd v
Harman 1971 (2) SA 21 (C) at 25H; Volkskas v Bankkorp h/a Trust Bank 1991 (3)
SA 605 (A) at 612C; Burg Trailers SA (Pt y) Ltd v Absa Bank Ltd 200 4 (1) SA 284
(SCA) at 289A; Absa Bank Lt d v Moore 2017 (1) SA 255 (CC) para 32.
(2020) 137 SALJ 246
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THE LEGA L NATURE OF PERF ORMANCE REC ONSIDERED 247
Performa nce of an obligat ion therefore has both a n objective and a
subjective element. 2 Objectively, one is required to do wh at one is
supposed to and, subjec tively, the par ties must intend for that per formance
to ful l the obligat ion.3 This l atter element is t ypically con strued as a
debt-extin guishing a greement.4 Simply put, in order to r elease a debtor
from a contract ual oblig ation, the par ties must conclude an a greement to
that eect.
It is often eas y to ascerta in whether perfor mance has ex ting uished
an obligat ion. However, there are part icular ca ses where it can be quite
dicu lt, for example where a debtor owes mu ltiple debts and pays a s ingle
amount to the cred itor.5
This bil ateral account of per formance w as introduced i nto South
Afr ican law by De Wet.6 In Saambou-Nasion ale Bouvereniging v Fr iedman7
the Appellate D ivision bluntly a ccepted De Wet’s view as correct, and it
has been rest ated as the genera l rule ever si nce.
The purpose of t his art icle is to reconsider the rele vance of the curr ent
approach to the lega l nature of per formance in S outh Afr ican law from
two perspect ives. First, a ttention wi ll be paid to Ger man law. The reason
is that the topic ha s received signi cant attent ion from Germ an lawyers.
The current S outh Afric an position al so mirror s the approach formerly
taken in Ger many. This raises the que stion whether there is merit in South
Afr ica’s continued retention of its approach when it ha s been abandoned
elsewhere. The ans wer to this quest ion lies in the second per spective,
which is to consider how the t heory has bee n applied by South Af rican
courts over the pa st two decades.
II T HEORIES OF PER FORMA NCE
(a) Introduction
The legal nat ure of performa nce has been a controversial t opic in Germany
since before the cod ication of its pr ivate law in 1900.8 Over the cour se
of the 20th cent ury, ve dierent approache s have been debated. Th ree
2 L F van Huyssteen, G F Lu bbe & M F B Reinecke Contract General Principles
5 ed (2016) 489.
3 Ibid.
4 J E du Plessis ‘Die reg saard van pre stasie’ (2002) 65 THRHR 59 at 61.
5 Ibid at 60.
6 I bid; J C de Wet & A H van Wyk Die Suid-Afrikaanse Kontraktereg en Handelsreg
5 ed (1992) 263.
7 1979 (3) SA 978 (A) at 993A–B. S ee for example Vo lks kas supra note 1 at
612C ; Pfeier v First N ational Bank of South Afr ica Ltd 1998 (3) SA 1018 (A) at 1025I;
8 Münchener K ommentar zum BGB 8 ed (2019) § 362 par a 9 (comment by
Rhona Fetz er) (‘MüKoBGB/Fetzer’).
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