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arbitrium boni viri

Pat Dewes
Litigation Division

My aim is to make things as simple as possible, but not simpler than that.  – Albert Einstein

This noble phrase crossed my desk a month or two back in a letter and has, as a consequence, stirred up litigation with national and possibly international consequences.  A franchisor which operates internationally has an agreement with a franchisee which operates within South Africa.  In terms of the agreement, the franchisor has the unfettered discretion to approve or disapprove of a proposed location for an outlet to be operated by the franchisee. The franchisee has the same discretion to grant a competitor the right to trade from an approved location.

The application of this discretion by the franchisor has resulted in the court proceedings which are currently pending.

More of that later.

Returning to the heading: the fact that a Latin phrase was used (and a rather obscure one at that) got me thinking again about my colleague Tim Brown’s passion for plain language – in particular, plain English.

Tim and I share the view that, if those candidate attorneys who are articled at Venn Nemeth & Hart can complete their articles knowing at least how to write a decent letter, we would have done okay. The standard of the written and spoken word produced by the schools and universities from which we draw our aspiring attorneys is little short of abysmal.

When we add “legal speak” to the equation, things can become much worse. We lawyers are very fond of showing people how clever we are by using language which no one else can understand.  Besides anything else, if the reader does not know what we are saying, the result is that we appear to be frightfully erudite and we can therefore charge appropriately.

The fact is that the use of words like “hereinbefore”, “the 11th instant”, “we will be pleased to respond to the contents of your correspondence once……”, is both arrogant and stupid.

But what then of the rather grand arbitrium boni viri?  With respect to Tim, there can be no better way of expressing the concept than using the phrase used by the Latin-speaking jurists of the time. Simply put, the words mean that if one has decision making power, one is obliged to exercise that power in a reasonable, non-arbitrary fashion.

A few days before this was written, the Constitutional Court ruled that the decision by our President to appoint Mr Menzi Simelane as the National Director of Public Prosecutions of South Africa was irrational and therefore invalid.  Although the President has the power, and indeed the duty, to appoint a National Director, he must exercise that power in a rational fashion. If he does not do so, he must bear the consequences and his decision can be set aside.

In the litigation referred to earlier, our client is a contracting party who has challenged the decision of the other contracting party (the one holding the power) to open a franchise at a particular site. Our client says that although the power to approve the site lies squarely with the franchisor in terms of the franchise contract, the decision to approve the site must be exercised arbitrium boni viri.

Our client claims that the decision is irrational and unreasonable and should be set aside.  Because the franchise operates internationally, there are possible repercussions in that if the franchisor cannot do “whatever it likes”, it may have to modify the way in which it has operated throughout the world for more than 40 years.

Occasionally legal speak, even in Latin, is justified but the general rule remains “Keep it Simple”.

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