The remedy of specific performance in Roman-Dutch law

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Introduction

Selected sporting codes have been regulated according to rules of professionalism for decades, even centuries. Other codes have acquired professional status more recently, while even other sporting codes function on either semi-professional or amateur bases. Professionalism in sport has provided the greatest of its participants, aptly referred to as “athletes”, with the opportunity of earning a living through practicing and exhibiting their God-given talents and skills for the enjoyment of the remaining majority of the human race (that is, those not blessed with the potential to play sport on a professional basis). It is vitally important to establish the meaning of the terms “athlete” and “sport” at the commencement of this thesis. The Oxford English Dictionary defines an “athlete” as someone who is good at sports, or a person who competes in track and field events. This definition is, however, too narrow for the purposes of this thesis. The Dictionary’s definition of “sportsman” is “a person who takes part in sport” or “a person who behaves in a sporting way”. A combination of these definitions does provide one with a more inclusive indication of what the term “athlete” entails, but the term “athlete” as it applies in this chapter is much broader. From the basic definitions above it may be gathered that an athlete is someone who participates in sport. This is confirmed by the South African Institute for Drug-Free Sport’s definition of an athlete, which reads as follows: “(An athlete is) any person who participates in sport at the international level (as defined by each International Federation), the national level (as defined by each National Anti-Doping Organization, including, but not limited to those persons in its registered testing pool), and any other competitor in sport who is otherwise subject to the jurisdiction of any signatory or other sports organization accepting the Code.”

Background

In order to address the questions posed above effectively, it is imperative that the origins of the contractual obligation are established. The development of a contract since Roman law will be traced and discussed in chapter 2 of this thesis, in order to determine whether the remedies which have been assigned for breach of contract by different jurisdictions would be both suitable to and effective in case of breach of athletes’ contracts (and more importantly, which of these remedies would be most suitable). In order to establish the extent to which contracts are enforceable, chapter 2 contains a detailed analysis of the origins and development of the contract as a way of creating legal consequences between contracting parties. The main challenge of such an analysis is the fact that especially in early Roman law29 little heed was paid to contracts as a manner of creating legal obligations between parties. The chapter discusses the first occurrence of what may be deemed a “contract” in Roman law – the so-called nexum, and continues to dissect and discuss its development throughout Roman and Roman-Dutch law, as well as English law, up to current South African law’s perception of the term “contract”. The aim of establishing the true origins of the modern notion of “contract” is to eventually establish the origins of the athlete’s contract. If the true nature of the athlete’s contract is uncertain, it would be irresponsible and quite frankly impossible to determine the most suitable contractual remedy in case of breach of said type of contract.

The development of the contract in Roman law

The current South African notion of what a contract entails can only be described by means of a thorough investigation into the development of this legal tool. Justinian dealt with the broader term “obligation” by defining it as est iuris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis iura.”66 It must be kept in mind, however, that the obligationes referred to by Justinian included any and all types of legal bonds that could be created between two parties, including delicts (or torts) and contracts. 67 During the  early period of Roman law,68 no distinction was made between obligations that arose from delictual acts and those that arose from contractual relations. 69The reason for this state of affairs is that business was seldom conducted through granting credit. If a person wanted to buy a product, such person went to the vendor in questionwith ready currency, paid for the product and received same immediately. Before money was used as a means of payment, barter was the most common manner of commerce. It involved the exchange of goods of the same value.

The concept of a contract in English law

Information on the rules relating to obligations in general, but especially to contracts before the Norman Conquest of England145 is rudimentary to say the least.146 The reason for this has already been alluded to above. Pollock and Maitland make mention of an Anglo-Saxon custom which required men who trafficked in cattle to make their purchases “openly and before good witnesses.”147 This custom, however, had very little to do with the enforcement or even creation of a contract of sale. On the contrary, the purpose of the custom was merely to protect honest buyers against claims by outsiders that the cattle in question were stolen from the latter.148 Anglo-Saxon society had little comprehension of the granting of credit and subsequent regulation thereof by way of contract. This came as a result of the withdrawal of the Roman system of law which was used in the Roman province of Britain until the end of the fifth century. 149 The Germanic races in return had no general notion of a promise or an agreement as basis of a civil obligation, although they did recognise Formal and Real contracts.150 This accords with Blackstone’s classification of a contract as merely one of the ways in which a title to property could be acquired. 151 He defines a contract as “an agreement  upon sufficient consideration, to do or not to do a particular thing”. 152 It was implied by  Blackstone’s definition of a contract that such contract conveyed an interest merely in action, and consequently consisted of only three elements: the agreement itself, the consideration,
and the species (or type) of the contract, in other words that which had to be done or omitted in terms of the contract between the parties.153 Before discussing the detailed origins of  formal English law of contract, it is imperative to establish how the formalities that regulate English law of contract came about.

Acknowledgments
Summary
Declaration
Chapter 1: Introduction and background
1.1.Introduction
1.2.Background
Chapter 2: The development of the contractual obligation in Roman law,Roman-Dutch law and English law
2.1. Introduction
2.2. The development of the contract in Roman law
2.2.1. Nexum
2.2.2. The development of the contract in Roman law since nexum
2.2.2.1. Contractus verbis
2.2.2.2. Contractus litteris
2.2.2.3. Contractus re
2.2.2.4. Contractus ex consensus
2.3. The development of the contract in Roman-Dutch law
2.4. The development of the contract in English law
2.5. The concept of a contract in current South African law
2.6. Conclusion
Chapter 3: Origins and nature of the athlete’s contract
3.1. Introduction
3.2. The meaning of sui generis as it relates to contracts
3.3. The contract of employment in Roman law
3.4. The contract of employment in Roman-Dutch law
3.5. The contract of employment in English law
3.6. The contract of employment in South African law
3.7. The nature of the athlete’s contract
3.8. Conclusion
Chapter 4: The remedy of specific performance in Roman law
4.1. Introduction
4.2. The meaning of “specific performance”
4.3. The origin and development of the remedy of specific performance in Roman law
4.3.1. The period of the kings
4.3.2. The Roman Republic
4.3.3. The Roman Empire
4.3.3.1. The Principate
4.3.3.2. The Dominate
4.3.4. The codification of Roman law by Justinian and the role of specific performance within this codification
4.4. The requirement that contractual obligations should remain possible
4.5. Conclusion
Chapter 5: The remedy of specific performance in Roman-Dutch law
5.1. Introduction
5.2. The availability of the remedy of specific performance in Roman-Dutch law Voet and Grotius’s points of view
5.3. The availability and suitability of the remedy of specific performance in Roman-Dutch law: a different point of view
5.3.1. The procedure known as “gijzeling”
5.3.1.1. The process of “gijzeling” in which a person was condemned by aJudgment of the Provincial Court to render an account or to perform an Act
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
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
5.4. The procedure followed in the execution of judgments for the specific performance of an act in Roman-Dutch law
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
5.6. Conclusion
Chapter 6: The remedy of specific performance in English law
6.1. Introduction
6.2. The nature of the remedy of specific performance in English law
6.3. Factors against the decree of specific performance in English law
6.4. Conclusion
Chapter 7: The remedy of specific performance in South African law
7.1. Introduction
7.2. The influence of the Roman-Dutch perception of specific performance on South African law
7.3. The influence of the English perception of specific performance on South African law
7.4. The remedy of specific performance and the Constitution of the Republic of South Africa
7.5. Conclusion
Chapter 8: Comparison between the treatment of athletes’ contracts in South Africa and abroad
8.1. Introduction
8.2. The treatment of athletes’ contracts in other jurisdictions with focus on specific performance as remedy for breach of these contracts
8.2.1. Jurisdictions within the United States of America
8.2.2. The European Union
8.2.3. The United Kingdom
8.2.4. Australia
8.2.5. New Zealand
8.3. Conclusion
Chapter 9: Comparison between specific performance and other remedies for breach of contract
9.1. Introduction
9.2. Contractual remedies for breach of contract in South Africa
9.2.1. Damages
9.2.2. Interdict
9.2.3. The penalty clause
9.3. The most suitable alternative to specific performance from a legal-practical South African point of view
9.4. Conclusion
Chapter 10: The restraint of trade clause
10.1. Introduction
10.2. The origins and development of contracts in restraint of trade
10.2.1. Roman law
10.2.2. Roman-Dutch law
10.2.3. English law
10.3. The development of the restraint of trade doctrine in South African law
10.4. Conclusion
Chapter 11: Breach of contract committed by the employer
11.1. Introduction
11.2. Constructive dismissal
11.3. Dismissal through non-renewal of fixed-term contracts in sport
11.4. Remedies available to the professional athlete in case of breach of contract by his employer
11.4.1. Injunction, interdict and specific performance against an employer
11.4.2. Damages suffered by the employee-athlete
11.5. Conclusion
Chapter 12: Conclusion and recommendations
12.1. Conclusion
12.2. Recommendations
Bibliography

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Specific performance as remedy for breach of athletes’ contracts