DOCSLIB.ORG

Specific Performance As Remedy for Breach of Athletes' Contracts By

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Specific Performance As Remedy for Breach of Athletes' Contracts By Specific performance as remedy for breach of athletes’ contracts by Kenneth Lindsay Mould Submitted in fulfilment of the requirements for the degree LL.D In the Faculty of Law, University of Pretoria September 2014 Supervisor : Professor S.J. Cornelius CONTENTS Acknowledgments Summary Declaration of originality Chapter 1: Introduction and background 1.1.Introduction 1. 1.2.Background 6. Chapter 2: The development of the contractual obligation in Roman law, Roman-Dutch law and English law 2.1. Introduction 17. 2.2. The development of the contract in Roman law 17. 2.2.1. Nexum 18. 2.2.2. The development of the contract in Roman law since nexum 19. 2.2.2.1. Contractus verbis 19. 2.2.2.2. Contractus litteris 20. 2.2.2.3. Contractus re 21. 2.2.2.4. Contractus ex consensus 23. 2.3. The development of the contract in Roman-Dutch law 24. 2.4. The development of the contract in English law 27. 2.5. The concept of a contract in current South African law 35. 2.6. Conclusion 36. Chapter 3: Origins and nature of the athlete’s contract 3.1. Introduction 44. 3.2. The meaning of sui generis as it relates to contracts 44. 3.3. The contract of employment in Roman law 47. 3.4. The contract of employment in Roman-Dutch law 48. 3.5. The contract of employment in English law 49. 3.6. The contract of employment in South African law 56. 3.7. The nature of the athlete’s contract 62. 3.8. Conclusion 79. Chapter 4: The remedy of specific performance in Roman law 4.1. Introduction 83. 4.2. The meaning of “specific performance” 84. 4.3. The origin and development of the remedy of specific performance in Roman law 85. 4.3.1. The period of the kings 85. 4.3.2. The Roman Republic 88. 4.3.3. The Roman Empire 91. 4.3.3.1. The Principate 91. 4.3.3.2. The Dominate 93. 4.3.4. The codification of Roman law by Justinian and the role of specific performance within this codification 94. 4.4. The requirement that contractual obligations should remain possible 97. 4.5. Conclusion 98. Chapter 5: The remedy of specific performance in Roman-Dutch law 5.1. Introduction 105. 5.2. The availability of the remedy of specific performance in Roman-Dutch law: Voet and Grotius’s points of view 107. 5.3. The availability and suitability of the remedy of specific performance in Roman-Dutch law: a different point of view 110. 5.3.1. The procedure known as “gijzeling” 111. 5.3.1.1. The process of “gijzeling” in which a person was condemned by a Judgment of the Provincial Court to render an account or to perform an Act 113. 5.3.1.2. The process of “gijzeling” in cases where a judgment was given against any collegiae, tutors, curators, receivers, agents or other condemned in some particular capacity 120. 5.3.1.3. The process of “gijzeling” in cases where a Provincial Court ordered performance as well as the payment of a sum of money 121. 5.4. The procedure followed in the execution of judgments for the specific performance of an act in Roman-Dutch law 121. 5.5. The development of the remedy of specific performance in Roman-Dutch law Since “gijzeling”: the situation in the Netherlands after the Napoleonic invasion 122. 5.6. Conclusion 123. Chapter 6: The remedy of specific performance in English law 6.1. Introduction 128. 6.2. The nature of the remedy of specific performance in English law 129. 6.3. Factors against the decree of specific performance in English law 133. 6.4. Conclusion 137. Chapter 7: The remedy of specific performance in South African law 7.1. Introduction 140. 7.2. The influence of the Roman-Dutch perception of specific performance on South African law 140. 7.3. The influence of the English perception of specific performance on South African law 144. 7.4. The remedy of specific performance and the Constitution of the Republic of South Africa 156. 7.5. Conclusion 160. Chapter 8: Comparison between the treatment of athletes’ contracts in South Africa and abroad 8.1. Introduction 163. 8.2. The treatment of athletes’ contracts in other jurisdictions with focus on specific performance as remedy for breach of these contracts 164. 8.2.1. Jurisdictions within the United States of America 164. 8.2.2. The European Union 177. 8.2.3. The United Kingdom 186. 8.2.4. Australia 195. 8.2.5. New Zealand 201. 8.3. Conclusion 203. Chapter 9: Comparison between specific performance and other remedies for breach of contract 9.1. Introduction 211. 9.2. Contractual remedies for breach of contract in South Africa 212. 9.2.1. Damages 212. 9.2.2. Interdict 222. 9.2.3. The penalty clause 229. 9.3. The most suitable alternative to specific performance from a legal-practical South African point of view 233. 9.4. Conclusion 236. Chapter 10: The restraint of trade clause 10.1. Introduction 245. 10.2. The origins and development of contracts in restraint of trade 246. 10.2.1. Roman law 246. 10.2.2. Roman-Dutch law 250. 10.2.3. English law 253. 10.3. The development of the restraint of trade doctrine in South African law 262. 10.4. Conclusion 277. Chapter 11: Breach of contract committed by the employer 11.1. Introduction 287. 11.2. Constructive dismissal 288. 11.3. Dismissal through non-renewal of fixed-term contracts in sport 293. 11.4. Remedies available to the professional athlete in case of breach of contract by his employer 298. 11.4.1. Injunction, interdict and specific performance against an employer 299. 11.4.2. Damages suffered by the employee-athlete 304. 11.5. Conclusion 306. Chapter 12: Conclusion and recommendations 12.1. Conclusion 317. 12.2. Recommendations 331. Bibliography 333. ACKNOWLEDGMENTS I would like to express my gratitude and appreciation to the following persons: My promoter, Professor Steve Cornelius, for taking a leap of faith in accepting me as a candidate. I will be forever grateful for the privilege of working under your supervision. Professor Ian Blackshaw for sharing much of his academic insight and extraordinary knowledge – both academic and general. Senior colleagues, especially Professors Rochelle le Roux, Graham Glover and Bradley Smith, Doctor Brand Claassen as well as the Honourable Mr Justice Edwin Cameron for taking valuable time to discuss the topic with me when it was still in a developmental phase. Jan Berry for providing me with motivation and professional support at a time when it was much needed. Marga van Aardt, who acted throughout as my academic assistant and conducted neat and proper work in conducting the bibliography. My extended family, especially my late grandfather Elias Jacobs and late grandmothers Bettie Jacobs and Frieda Mould, for their often blind belief in my abilities. My parents, Lindsay and Aldu, for installing in me the discipline to undertake this task and provided me with the opportunity to study at a tertiary institution and pursue my dream of an academic career. My sister, Liza-Anne Meyer, for keeping me humble, and her husband, Sakkie Meyer, for his unwavering support. Jana, my wife, soul mate and greatest friend. With you I am everything and without you I am nothing. To God Almighty and His Son Jesus Christ, whose Grace is beyond comprehension. Kenneth Mould Bloemfontein November 2014 SUMMARY SPECIFIC PERFORMANCE AS REMEDY FOR BREACH OF ATHLETES’ CONTRACTS By Kenneth Lindsay Mould, submitted in partial fulfillment for the degree Doctor Legum in the Department of Private Law, University of Pretoria, under the supervision of Professor SJ Cornelius. The aim and object of this thesis are to determine the most suitable, but more importantly, effective, remedy for breach of the athlete’s contract. Sport as a profession, but also a business, has never been more profitable. This has inevitably led to athletes’ contracts being repudiated on an alarming and global scale. Contractually-determined formulae for remunerating parties who have, or will be, suffering damages due to the repudiation of either a professional athlete or a professional sports club, union or franchise of the athlete’s contract between them, has failed to stem the ever-rising tide of breach of athletes’ contracts. Therefore, this thesis has set out not to suggest ways in or formulae by which a disadvantaged party may be remunerated if a professional athlete or his/her “employer” repudiates the professional athletes’ contract between them, but to determine and suggest to courts which contractual remedy would be most suitable in case of breach of said type of contract, but also most effective in ensuring that parties to an athlete’s contract respect the nature of the legal tool that binds them. Ultimately, the thesis aims to establish how the maxim pacta sunt servanda, which forms the cornerstone of the law of contract, may be protected. Specific performance is considered the primary contractual remedy in South African law. Current South African case law suggests that South African courts would have no objection to compelling a professional athlete who wishes to rescind his contract prematurely (that is, before the contract expires) to honour said contract through an order of specific performance. However, one of the unique challenges presented by this thesis is the fact that sport is a global profession. This means that athletes ply their trade in various jurisdictions in which they are not necessarily domiciled. Whereas, for example, specific performance is the primary contractual remedy in South African law, it is but a secondary one in English law, which would only be granted if equity so demands.
Load more

Recommended publications
  • Rectification of Documents: Removing Unnecessary Complexity
    University of New England School of Law TOPIC: Rectification of Documents: Removing Unnecessary Complexity A Dissertation submitted by John Patrick Tarrant, SJD For the award of Doctor of Philosophy June 2017 Page | 1 ABSTRACT Within the equitable doctrine of rectification, a distinction between common or mutual mistake and unilateral mistake is currently adopted by courts, litigants and scholars. Based on this distinction the focus of a court is to identify who made a mistake and who had knowledge of any mistake. This approach is unhelpful and has led to unnecessary complexity which has been identified by judges and scholars in several recent cases in England and Australia. In addition, the boundary between common law construction and the equitable doctrine of rectification has become less clear. To address the complexity of the law and the uncertain boundary between construction and rectification this thesis examines the scope of the common law approach to construction, identifies the current law relating to when rectification will be granted, outlines in what ways is it difficult to reconcile the current case law, and explains where the law of rectification went wrong. After addressing those matters the thesis explains how the case law on the equitable doctrine of rectification needs to be restated, in accordance with principles established in earlier case law, so that the law is coherent and principled. This provides a comprehensive solution to the uncertainty and complexity in the law of rectification. The solution includes arguing that the distinction between common or mutual mistake and unilateral mistake should be rejected and that the correct distinction is between two different types of mistakes: mistakes made in the recording of agreements and mistakes made during the formation of agreements.
    [Show full text]
  • Sale and Supply of Goods, Third Edition
    SALE AND SUPPLY OF GOODS Third Edition Cavendish Publishing Limited London • Sydney SALE AND SUPPLY OF GOODS Third Edition Professor Michael Furmston TD, MA, BCL, LLM, Barrister Bencher of Gray’s Inn Emeritus Professor of Law and Senior Research Fellow The University of Bristol Cavendish Publishing Limited London • Sydney Third edition first published 2000 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0) 20 7278 8000 Facsimile: +44 (0) 20 7278 8080 E-mail: [email protected] Visit our Home Page on http://www.cavendishpublishing.com © Furmston, MP 2000 First edition 1994 Second edition 1995 Third edition 2000 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. British Library Cataloguing in Publication Data Furmston, MP (Michael Philip) Sale & supply of goods—3rd ed 1 Sales—England 2 Sales—Wales I Title 346.4’2’072 ISBN 1 85941 495 8 Printed and bound in Great Britain CONTENTS Table of Cases ix Table of Statutes xvii Table of Statutory Instruments xxi 1 INTRODUCTION 1 The Origins of Sales Law 1 The Borderline between Contract Law and Sales Law 2 Is the Sale of Goods
    [Show full text]
  • Introduction to Contract Law Pdf Uk
    Introduction to contract law pdf uk Continue The Introduction of the English Treaty Law on the Navigation Jump to the English Treaty Law is one of the main articles of the Law that governs the law of England and Wales. It legally focuses on restrictive agreements and laws for all types of agreements and parties. A full understanding of the subject is necessary because the principle of implementing this agreement is important for the stability of society and affects individuals and businesses, for example, the provision of such services, the sale of goods, and the use of basic contract principles in other areas of the employment law. The book focuses on rules and regulations that monitor the establishment, content, accuracy and termination of the agreement. The treaty has a long history in law, with great progress presented during the nineteenth century, the treaty and the principle of freedom of the fairies. ' Although Britain has initiated the process of leaving the Eu, this book assumes that the ENGLISH agreement will continue to be influenced by the EU rules and regulations for the future, unless a great process is approved by Parliament. : [1893] 1 Cab 256 CA : [2010] Has a treaty of the Treaty of England and Wales which is applicable in the court. The agreement regulates all types of transactions, from buying a tube ticket to computerized deity trading. The English Treaty Law is an institution of law governing the agreement in England and Wales. Lex is a member of the Commonwealth (such as Australia, Canada, India [1]) and a less-than- common lyth with the United States, with its roots in the activism of the judiciary during the Industrial Revolution.
    [Show full text]
  • Commercial and Consumer
    COMMERCIAL AND CONSUMER LAW CONSUMER AND COMMERCIAL Are Scottish bank notes legal tender in the UK? Find out on page 310 If you worked in a restaurant, would you be entitled to customer tips processed on a credit card? Find out on page 323 If you brought something on eBay could you claim your money back from your credit card company if you didn’t receive it? Find out on page 524 If you booked a package holiday and your hotel wasn’t booked when you arrived, could you take any action against the tour operator? Find out on page 418 In Commercial and Consumer Law, a team of specialists draw upon their extensive expertise in this fi eld to provide you with this essential guide to the key legislation and case law relating to both domestic and international commercial transactions. Recognising that commercial and consumer law does not operate in isolation, the book offers not only a scholarly, yet highly readable, account of commercial and consumer law principles, but also highlights the commercial and socio-economic context of the law. To help you get the most from the book, a range of features designed to support you during your study are used throughout including: • Summaries of the essential cases and extracts from key legislative provisions that you will need to draw upon when answering problem or essay questions • Debate and issues boxes to highlight particularly contentious areas of the law and help you refi ne your critical analysis skills necessary for gaining those top marks in exams • Real life examples to illustrate how the law in this area operates in practice • Further reading lists at the end of all chapters point you to relevant academic articles enabling you to delve deeper into the academic debates surrounding the subject COMMERCIAL AND Commercial and Consumer Law is particularly suitable for both undergraduate and postgraduate law students.
    [Show full text]