This dissertation critically examines the common law caveat subscriptor rule and argues against
the strict application of the rule in the context of ‘contracts of necessity’ (which is defined in the
research paper). I will begin by explaining what exactly the caveat subscriptor rule entails and
how it functions within the realm of mistake in contract as a species of the reliance theory which
the South African law of contract endorses. I will then proceed to outline the narrow grounds
recognized by the courts to date upon which one may escape the working of the caveat
subscriptor rule. In section II of the paper I will briefly discuss the rise of the consumer
protection movement and consider the extent to which the Consumer Protection Act now
provides added protection to the unwitting signatory against the strict application of the rule. In
section III I will critically examine the underlying presumptions of the caveat subscriptor rule
which purport to justify the existence and application of the rule itself. I will then proceed to
illustrate that while the assumptions underlying the caveat subscriptor rule may have been
accurate and relevant in the past, these assumptions are no longer in keeping with the modern era
of mass marketing characterized by the widespread use of standard-form contracts and consumer
non-readership, which is reflected in recent judgments dealing with unread contract terms. In
section IV I will examine the modern reality of consumer non-readership caused by various
innate psychological factors and behavioural biases, particularly in the context of contracts of
necessity. In section V I show that a change in judicial attitude towards unread contract terms
and increased fairness towards the signatory is warranted not only in light of modern consumer
behavior, but also in light of the courts constitutional mandate to develop the common law in
accordance with section 39 (2) of the Bill of Rights as well as its underlying values. In section VI
will propose a new basis for escaping the strict application of the rule grounded in public policy
and will conclude by suggesting some practical methods for reform under the common law. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2012.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ukzn/oai:http://researchspace.ukzn.ac.za:10413/9979 |
| Date | 12 November 2013 |
| Creators | Govinden, Kaelin. |
| Contributors | Louw, Andre M. |
| Source Sets | South African National ETD Portal |
| Language | en_ZA |
| Detected Language | English |
| Type | Thesis |
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