LJU4804
ASSIGNMENT 2 SEMESTER 2 2025
UNIQUE NO. 199151
DUE DATE: 15 SEPTEMBER 2025
, LJU4804 Private International Law – Assignment 2
Unique Number: 199151
2.1 The objective approach and the proper law of the contract (10 marks)
When determining the proper law of a contract in the absence of an express or implied
choice by the parties, South African courts apply the objective approach. This
approach entails an inquiry into which legal system the contract has the closest and
most real connection with (see Laurens NO v Von Höhne 1993 (2) SA 104 (C) at 114).
Unlike the subjective approach, which focuses on the parties’ presumed intentions, the
objective approach evaluates factual connecting factors.
According to Fredericks (“The proper law of the contract in South African private
international law” 2003 SA Merc LJ 63 at 70–72), the objective approach avoids artificial
presumptions and instead weighs the economic and practical connections of the
contract. Relevant connecting factors include:
Place of performance: The seller’s delivery obligations were in Tokyo, Japan
(FOB Tokyo), while payment was to be effected in Tokyo as well.
Place of contracting: The agreement was negotiated internationally, but
performance is strongly linked to Japan.
Place of payment: The purchase price of €1 million was to be paid into Sakana’s
account in Tokyo, reinforcing the Japanese connection.
Domicile/central administration of parties: Catch is based in South Africa,
Sakana in Japan.
Balancing these factors, the contract’s most significant connections are to Japan, given
that both delivery and payment obligations — the core of the bargain — are situated
there. Therefore, if the South Gauteng High Court applies the objective approach, the
proper law of the contract would likely be found to be Japanese law.
ASSIGNMENT 2 SEMESTER 2 2025
UNIQUE NO. 199151
DUE DATE: 15 SEPTEMBER 2025
, LJU4804 Private International Law – Assignment 2
Unique Number: 199151
2.1 The objective approach and the proper law of the contract (10 marks)
When determining the proper law of a contract in the absence of an express or implied
choice by the parties, South African courts apply the objective approach. This
approach entails an inquiry into which legal system the contract has the closest and
most real connection with (see Laurens NO v Von Höhne 1993 (2) SA 104 (C) at 114).
Unlike the subjective approach, which focuses on the parties’ presumed intentions, the
objective approach evaluates factual connecting factors.
According to Fredericks (“The proper law of the contract in South African private
international law” 2003 SA Merc LJ 63 at 70–72), the objective approach avoids artificial
presumptions and instead weighs the economic and practical connections of the
contract. Relevant connecting factors include:
Place of performance: The seller’s delivery obligations were in Tokyo, Japan
(FOB Tokyo), while payment was to be effected in Tokyo as well.
Place of contracting: The agreement was negotiated internationally, but
performance is strongly linked to Japan.
Place of payment: The purchase price of €1 million was to be paid into Sakana’s
account in Tokyo, reinforcing the Japanese connection.
Domicile/central administration of parties: Catch is based in South Africa,
Sakana in Japan.
Balancing these factors, the contract’s most significant connections are to Japan, given
that both delivery and payment obligations — the core of the bargain — are situated
there. Therefore, if the South Gauteng High Court applies the objective approach, the
proper law of the contract would likely be found to be Japanese law.
