In short, social forces shape contracts: the stronger the sense of community, the more effective these sanctions are likely to be. The result: A privately ordered system of business behaviour, which exists without reference to the governing law of the state. The underlying adhesive: community.
In the absence of conventional forms of collateral, my contract partner’s knowledge of my financial standing and habits will serve as a guarantor of payment.
While trust may not always be present, and altruistically putting another’s needs before one’s own may be difficult when money is tight and economic needs press, a moderate sense of community does indeed characterise contracting in this setting. This leaves room for private property and individual financial goals, but ensures that one prioritises communal relations when making economic decisions.
This snippet from a short article by Andrew Hutchison and Nkanyiso Sibanda validates our own discoveries from observing the informal trade ecosystem in East Africa. Hutchison and Sibanda’s aim is to inform the policy question as to whether South Africa needs to develop a dedicated indigenous law of contract. Their research set about moving the study of contracting from the centralised law of the state into the context of what happens in the popular economy – the space where the informal and formal sectors meet.
This is a powerful space for policy and law. Few formal institutions have successfully bridged this space between the formal and informal – my usual go to example are the mobile service providers and their prepaid purchase model as one that fits the needs of the informal context.
Sibanda and Hutchison go on to share some thoughts on their future direction:
We have described these informal rules and regulations as adhering to the concept of ubuntu. Retired Constitutional Court judge, Yvonne Mokgoro, defines ubuntu using the African saying:
a human being is a human being through other human beings.
This means that a person’s individual existence and welfare are relative to that of her community.
Context sensitive law
How are we then to define ubuntu in a given contractual setting in South Africa? “With reference to context,” is our answer. The notion of community described above requires a certain type of social environment. We think that this environment is to be found in South Africa’s popular economy and the relevant empirical literature supports this view. But what about high value contracts between South Africa’s blue chip companies?
We believe that contract law should be context sensitive. This should include which business community’s norms are used in determining the outcome of a given commercial dispute. This is not to say that corporates aren’t African, but rather that the value of community may be different. And even in the informal sector, contracts must be honoured. Under the South African Constitution, common and customary law are presently separate parallel branches. Our research will inform future arguments about how these two branches may influence each other.
I hope they will inspire lawyers and researchers in other African countries to begin looking at the same challenges in their own operating environment. Inspiring policy thinking about customary law in the context of community and business would go a long way to paving the path for an African version of the formal institutions required for a developed economy.