USE TEXT A BELOW TO ANSWER THE QUESTION 1.
NB:YOU ARE A PRIVATE INTERNATIONAL LAW STUDENT AND SUPPOSED TO ANSWER THIS 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 1
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 facts presented, the determining factor for the validity of the contract would be the connecting factor used by the local court's choice of law rule. In this case, since the offer was made in the Netherlands by Jack, it is likely that Dutch law may apply.
However, as mentioned in the text, there may be differing interpretations of the connecting factor depending on the jurisdiction. For example, South African law might consider the contract to be concluded upon posting of the acceptance letter, while Dutch law might consider it concluded upon receipt.
Given this potential conflict in interpretation, it would be advisable for Daniels to seek legal advice from a lawyer familiar with private international law to determine the best course of action. The issue of conflicting interpretations of the connecting factor, especially in cross-border contracts, is a complex matter that may require a deeper analysis of the specific laws involved.