Abstract
For many years, the South African doctrine of duress has fell short of recognising threats of economic harm as an actionable defence in the law of contract. As we have now entered a commercial era, where a person’s economic prosperity and profitability are paramount, various legal systems such as America and England have recognised the inherent illegitimacy of these novel threats. The contextual approach adopted in these jurisdictions could provide essential guidelines for South African courts in developing a modern test for duress. By evaluating the context in which parties reach consensus, characteristics such as gender could potentially become an important factor in the courts’ evaluation. From a South African perspective, women have been historically and statistically economically vulnerable due to the gendered nature of contract law and their inequality in society. A feminist perspective on economic duress asks the question of whether a court would, in future, be more inclined to accept a claim of economic duress if the action is instituted by a woman. In addition, this perspective will also evaluate whether this approach would have commercial ramifications for women and reaffirm the notion that women are weaker contractants in need of special protection.
LL.M. (Commercial Law)