USE TEXT A BELOW TO ANSWER THE QUESTION THAT FOLLOW, REMEMBER TO ADD AUTHORITY AS YOU ANSWER THE QUESTION.
TEXT A
Once it is determined that the dispute in question falls within the ambit of a choice of law rule, it is then a matter of determining which legal system is indicated by the connecting factor. This again appears relatively simple—where was the marriage celebrated? A simple question of fact—but it may be more difficult. Suppose, for example, that, having applied the choice of law rule, the connecting factor points to the applicability of the law of X; X’s law, however, also has choice of law rules, which use different connecting factors and, if those rules are applied, they direct that, say, the law of A, not the law of X, should be applied. Since X’s conflict rules, as we have seen, form part of the law of X, it appears prima facie that, if the local court’s conflict rules direct that the law of X be applied, X’s conflict rules too should apply, ie that, in fact, there should be onward reference to the law of A! This is the famed, perhaps notorious, conceptual question of renvoi. It too will be more fully discussed elsewhere. Moreover, it may be that the lex fori interprets the connecting factor in one way, and the lex causae in another. A South African court, for example, will consider a contract concluded where the letter accepting the offer is posted, but a German court will take the view that the contract is concluded where the letter is received. If the locus contractus of a contract concluded by posting a letter in South Africa accepting an offer made by a German offeror is the connecting factor in question, it is plain that that connecting factor will be differently interpreted by German and South African law. Since the connecting factor, however, is part of the local court’s choice of law rule it follows that the lex fori must be used in the determination of the connecting factor. It may be noted that this rule may well mean the law applicable to the contract in question will vary depending upon where a matter is litigated, thereby defeating, even at this early stage, a major purpose of private international law. Moreover, this cannot be an entirely infrangible rule because where nationality is used as a connecting factor the potential lex causae rather than the lex fori must be used.
QUESTION:
An offer was made by Jack from the Netherlands (Amsterdam) to Daniels, a South African from Gauteng. The offer was accepted and duly posted on the 20/04/2024. On the 21st of April 2024, Jack (the offeror) decided to withdraw his offer and phoned Daniels (the South African) to inform him accordingly. Daniels (the South African offeree) is convinced that a valid contract was concluded, because the place where the letter of acceptance was posted will determine the validity of the contract. Contrary to this, Jack (the offeror from the Netherlands) argues that the message to revoke reached Daniels (the offeree) long before he himself received the letter of acceptance – the contract, therefore, never came into existence. Fully advise Daniels on the solution available to him and the phenomenon shown by the facts
Based on the provided scenario, Daniels (the South African offeree) believes that the validity of the contract is determined by the place where the letter of acceptance was posted, which is in South Africa. However, Jack (the offeror from the Netherlands) argues that he revoked his offer before Daniels received the letter of acceptance.
In this case, Daniels may face a dilemma due to the potential conflicting interpretations of connecting factors by different legal systems. The South African court may consider the contract concluded where the letter of acceptance was posted, while a Dutch court may take into account the moment the offeror revoked their offer. As a result, it is important for Daniels to seek legal advice from professionals well-versed in international private law to determine the appropriate legal framework applicable to his situation.
Authority: The discussion of the potential conflict between the interpretation of connecting factors by different legal systems is based on the text provided, which highlights the complexities of choice of law rules.