The case law in this research highlights the fact that courts are in favour of contractual validity and have accepted pacta sunt servanda as a cemented principle in the South African law of contract. Fourthly, a term that purports to limit or exclude the liability of a supplier for harm caused by gross negligence as well as a term that constitutes an assumption of risk by the consumer or imposes an obligation on a consumer to assume the risk of handling any goods. Contracting parties are subject to the values of society when. To deny him judicial redress for injuries he suffered in doing so, which came about as a result of the negligent conduct of the hotel, offends against notions of justice and fairness The problem of unfair contracts is not only limited to consumer agreements but permeates the whole of contract law.
In this research both interpretation and drafting of contracts will be examined to identify their impact on the principle of pacta sunt servanda. Abbas Arts, , p. De Jure Law Journal You are here: The enactment of the CPA, aimed at protecting public interests, reinforces the need to incorporate the societal values such as fairness, justice, and equality into contract law. It is worth noting that the CPA makes explicit liability for gross negligence. This page was last edited on 6 November , at Similarly, the High Court in Naidoo v Birchwood Hotel declined to enforce exemption clauses and the disclaimer notices on the basis that doing so would have been unjust and unfair.
To deprive the first applicant of the opportunity to have the property transferred to her and in the process cure her breach in regard to arrears, would have been a disproportionate sanction and consequently unfair.
The doctrine is essentially an “escape clause” to the general rule of pacta sunt servanda promises must be kept.
There are many dimensions dissertatioon a contract which affect its meaning as a legal instrument, apart from the legal dimension there sjnt also a structural dimension of contracts.
Ngcobo J held that the correct approach to the constitutional challenges to contractual terms, is to determine whether the term is contrary to public policy as evidenced by the constitutional values that underlie our constitutional democracy, in particular, those found in the Bill of Rights.
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With regards to the structural dimension, the interpretation and the drafting of contracts is relevant because this is pata process by which the agreement between the parties is codified and interpreted. Nicholls J stated that exemption clauses that exclude liability for bodily harm in hotels and other public publics have the effect, generally, of denying a claimant judicial redress. The respondent went to a hospital and signed a standard-form contract incorporating a clause that excluded liability for any damages suffered as a result of the negligence of the nursing staff or employees of the appellant.
From Wikipedia, the free encyclopedia. Abbas Arts,pp. These statements are a source of hope regarding the notion of fairness and equity in contract law. If, however, sunt contractual provision is capable of implementation in a manner that is against public policy but the servznda of the provision is neutral then the offending tendency servanda absent.
It is worth noting that the CPA makes explicit liability for gross negligence. Zondi J stated that:. See also Barnard supra n at See also Sasfin Pty Ltd v Beukes supra n The Court concluded that Naidoo had discharged his onus of proving a delictual claim against the pacya and that the disclaimer notices and the exemption clauses were not a good defence.
It focusses on unconscionable conduct and false, misleading or deceptive representations. Test your visual vocabulary with our question challenge! The implication of this provision is that once the supplier has alerted the consumer, he cannot rely on iustus error as in the past.
Dissertation pacta sunt servanda
The second part examines the extent to which the law of contract has disssrtation constitutional values in view of the fact that the Constitution of the Republic of South Africa, the Constitution is the supreme law of the land.
The Constitutional Court in Everfresh Market Virginia v Shoprite Checkers 73 emphasised the central importance of the principle of good faith and the desirability of infusing the law of contract with constitutional values, including the values of ubuntu. Unequal bargaining power is a relevant consideration servsnda determining whether a contractual term is contrary to public policy. Stare decisis constraints legal reasoning and can lead to judicial conservatism which can be seen in the Supreme Court of Appeal: The October quiz in November.
The Constitution recognises the imbalances of the past and the CPA is in accordance with the objective of the Constitution to address the social and economic inequalities brought about by apartheid and the discriminatory laws. Inequalities in bargaining power in South Africa are underscored by deeply entrenched social and economic inequalities, occasioned by apartheid and patriarchy. The notion of freedom of contract is a constitutionally recognised principle which is associated with party autonomy and denotes minimal state interference.
Employment is provided to 91 permanent members of staff, additional casual staff as well as indirectly to secondary staff and service providers. This site is operated by a business pacta businesses owned by Informa PLC and all copyright resides with them. Don’t servanda us started sunt ‘bimonthly’. Fairness is a slippery concept which is not easy to attain.