Pacta sunt servanda wins again?
FIRST NATIONAL BANK, A DIVISION OF FIRSTRAND BANK LTD v CLEAR CREEK TRADING 12 (PTY) LTD AND ANOTHER 2014 (1) SA 23 (GNP)
Home loan agreement entered into by an individual and FNB voluntarily.
The terms included, fell into the scope of the National Credit act and were explicitly stated.
Plaintiff argued the act does not hold ground on the basis of section 4(1)(b) read with section 9(4) of the credit act.
The legal question: was if the act (section 4(1)(b) read with section 9(4)) was included in the range of the act also including the principle of Pacta sunt servanda.
Arguments put forward:
Barkhuizen v Napier dealt with the fairness of the provision in the act, isolating paragraph 57, the “duty for a party to comply with contractual obligations.”…”freely and voluntarily undertaken” reference was also made to the “morality” of the agreement, and therefore the human free will to enter into the contract with the presented information.…show more content… And therefore it was stated that parties should be, still bound to the contracts entered into.
Paragraph 21 stated that the contract was pursued with the intention of mutual benefit and therefor should be honoured in a manner which is to respect and protect the National credit act and all that it entrenches. it must be mentioned that the plaintiff posed a statement that the act in section 3 aims to promote the welfare and advance the trade in South