A Treatise on the Law in South Africa
by Susan Scott (623 pages)
Juta & Co (Pty) Ltd www.jutalaw.co.za
“The law regarding cession of actions… presupposes a triangle – a debtor, a creditor who becomes a cedant, and a third party, the cessionary, to whom the benefit is tranferred by the cedant creditor.”– Chief Justice of the Southern Rhodesia High Court, Sir J M Murray, in Farmers Co-op Ltd v The Master 1959(3)SA 342 (SR)
Cession is a central component of the law of contract and yet is often overlooked by those transacting business and taken for granted by legal practitioners. But it is a complex and intricate subject that warrants in-depth examination and carefully considered treatment.
That has been done in this comprehensive study which is both scholarly and yet of immense practical value for lawyers. It reveals undoubted shortcomings and uncertainties in the South African law of cession, where reform has too long been neglected. Case law is still the main source of the law of cession but this is largely based on the Roman-Dutch law which in this field is outdated and does not satisfactorily address many core issues.
The author is the undoubted doyenne of academic specialists on the law of cession. She has drawn on a lifetime of study and experience to encapsulate between the covers of this volume not only a study of the law of cession, but also to use her insight and knowledge of the subject to point the way forward with proposals for the South African Law Commission and legislators to review and reform problems and shortfalls in the law. This approach provides extensive information and ample authority for legal practitioners to persuasively argue in the courts for adjustments, adaptations and the application of principles to the law of cession to deal effectively with difficult issues that arise.
These propositions are underpinned by an understanding of the historical development of cession as a legal institution as set out in the book, and evaluations of comparable legal systems in other international jurisdictions. Cession is effectively contrasted with other three-party relationships such as agency, mandate, subrogation, negotiation of a bill, factoring, and a stipulation benefiting a third person.
Every aspect of cession is dealt with in depth. The requirements for, objects and effects of a cession are covered as are specific cessions such as the important cession in security of a debt. The detail provided may at times appear daunting but this is fully justified by the definitive treatment which the many aspects of this branch of the law receives.
The author Susan Scott BA LLB LLD is Emeritus Professor of Private Law at the University of South Africa. During her career of over 40 years she has held a number of destinguished international research and academic posts. She is the author of The Law of Cession (1991) and has published extensively on the subject in legal journals both locally and abroad.
The very substantial case law which forms the backbone of the law of cession in South Africa as it has developed is quoted, cited, explained, contexualised and criticised where appropriate, all of which illuminates the underlying principles, purpose and mechanics of cession.
The index, footnotes, tables of cases and statutes, domestic and foreign, as well as the extensive bibliography, all contribute to making this treatise a unique and invaluable resource for legal practitioners and scholars alike. It sets a benchmark of the highest level.
Review by Louis Rood BA LLB (UCT), Consultant at Fairbridges Wertheim Becker Attorneys.