The law of contract in South African affords parties the freedom to enter
into a contract and who they wish to enter with. The general requirements
for a legally enforceable contract are consent, good faith, and the sanctity
of contract. The contractual freedom of parties also offers them freedom to
choose the terms of their contract. Part of these terms is the freedom to
incorporate exemption clauses in contracts. An exemption clause is a
waiver of liability or the apportionment of risk in the event of an occurrence
materialising as defined in the contract. Exemption clauses have become
the norm rather than the exception and parties must therefore expect a
contract to contain an exemption clause, albeit unfair. Until recently, there
was no legislation that declared exemption clauses as unfair. The
Consumer Protection Act is South Africa's first legislative regulation on
unfair contract terms and the waiver of liability. The Act does not address
the contractual freedom of parties to incorporate exemption clauses and
whether they will be unenforceable in the light of section 48. The Act cannot
be implemented without considering the freedom of contract to rely on
exemption clauses. A literature study will be undertaken in order to
establish the influence of section 48 of the Consumer Protection Act on
South African law of contract and exemption clauses. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2015
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/15957 |
| Date | January 2014 |
| Creators | Tromp, Johannes Adriaan |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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