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Vitiating Factors in Contract Law – Some Key Concepts and Developments

Andrew Phang Boon Leong SC

(2005) 17 SAcLJ 148

There is a constant need to achieve a balance between certainty and fairness in the law of contract. In this respect, vitiating factors tend to focus on the latter (with the former constituting, at most, just one conception of fairness, amongst others). However, because of the consequent danger that contracts might be unravelled unnecessarily by the application of such factors, there is a need for doctrinal as well as conceptual clarity. This article focuses, first, on key (and recent) doctrinal developments – particularly with regard (but not limited) to the law of mistake and the law relating to undue influence. Doctrinal developments cannot, however, be wholly understood without an appreciation of the relevant conceptual underpinnings and linkages. To this end, a few key conceptual difficulties will also be examined with a view to elucidating a more effective practical approach towards the vitiating factors concerned.