“MIND THE GAP”: A PRACTICAL EXAMPLE OF THE CHARACTERISATION OF PRESCRIPTION/LIMITATION RULES

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Abstract:

Society of Lloyd's v Price and Lee 2005(3) SA 549 (T) concerns an attempt by the Society of Lloyd's to enforce in South Africa default judgments obtained in London. The South Africa court applied the relevant prescription rule of South African law (debt extinguished after three years(which had elapsed) rather than the six year period (which had not elapsed) of English law. This conclusion followed from characterising the relevant rules by the lex causae rather than the lex fori. This led, in the particular circumstances, to the conclusion that no prescription rules were applicable. Faced with this unacceptable result (so called “gap”) the court resorted to lex fori. The article argues that a non-mechanical approach to the problem of “gap” in which the court would take account the policies of the different rules potentially applicable rules as well as importance of uniformity of decision would have been preferable. The article shows the impact of theory on real problems and real cases.

Keywords: Characterisation; cumulation; gap; limitation; prescription

Document Type: Research Article

Publication date: April 1, 2006

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