For connoisseurs of legal arcana, the case of Society of Lloyd's v Price; Society of Lloyd's v Lee 2006 (5) SA 393 (SCA) (hereafter Society of Lloyd's) has a special significance. Not only did it settle the question how best to characterize causes of action, but it also offered a solution for that curious problem of 'gap'. Both of these are issues arising out of conflicts of law. In itself the conflict of laws is an abstruse discipline, for it involves not simply the application of law to facts, but rather the application of a set of second-order choice-of-law rules which are designed to indicate what law should be applied to facts that happen to contain a foreign element. The Society of Lloyd’s case, however, took matters a stage further: the logic of the choice-of-law process drove the court to a point where it discovered that, in the circumstances of the case, no law was applicable. In conflict jargon, this conundrum is known as a problem of ‘gap’. (Its counterpart is ‘cumulation’, namely the simultaneous applicability of two or more laws.
