The role of the court is to ensure procedural as opposed to substantive fairness. These statements are a source of hope regarding the notion of fairness and equity in contract law. This question remains unanswered not only in South Africa, but in other countries as well. The CPA creates mechanisms through which problems experienced in contract law could be ameliorated by introducing prerequisites for consumer contracts, such as plain language and the need for the attention of the consumer to be drawn to certain clauses. As shown above, there is a need for courts to continue infusing contract law with constitutional values.

The main aim of this article is to assess whether legal paternalistic interventions by the State, through the enactment of the CPA, is a solution for the problem of infiltrating the application of rules in contract law with equity and fairness. As shown above, there is a need for courts to continue infusing contract law with constitutional values. On its own, the CPA will not suffice in achieving fairness. The first part analyses the question whether the common law of contract has fully embraced constitutional values to import fairness into contractual relations. Inequalities in bargaining power appear to be inherent in contractual relationships because of social differences and the unequal distribution of wealth. Abbas Arts, , p.

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.

Despite this disseration, the judgments discussed below indicate that the tide is now turning towards fairness.

dissertation pacta sunt servanda

It must be seen as a step towards building a system that values fairness and equity. There are conditions that are prohibited outright with the result that they are void to the extent of their pcta with the CPA.

Clausula rebus sic stantibus – Wikipedia

It remains to be seen if servahda SCA will embrace the pronouncements disaertation Everfresh by developing and expanding the role of good faith. The impact of pacta sunt servanda in sservanda law of contract Login.

Contracting parties are subject to the values of society when. Unfairness in contract law is dealt with in a number of ways, including the manner in which consensus is obtained; impossibility of performance; 74 relaxation of the caveat subscriptor rule; and through the contra dissettation rule, 75 which states that if there is ambiguity, the language must be construed against the proferens.


First, whether the clause itself is unreasonable; and secondly, if the clause is reasonable, whether it should be enforced, taking into account circumstances which prevented compliance with the term.

The CPA, together with the Constitution, is nonetheless exerting a strong impact upon contract law. The decision in Afrox has been largely criticised because the patient was only confronted with an exemption clause at the very last minute and it is unrealistic to have expected him to seek a better contract elsewhere.

The impact of pacta sunt servanda in the law of contract

Common law is thus an uncodified body of law that is developed through the doctrine of stare decisis. Clausula rebus sic stantibus Latin for “things thus standing”in public international lawis the legal doctrine allowing for a treaty to become inapplicable because of a fundamental change of circumstances. The second contention was that the provisions of clause 16 violate section 25 of the Constitution.

The case law in this research highlights the fact that courts are in favour of contractual validity and have dissetration pacta sunt servanda as a cemented principle in the South African dissdrtation of contract. The need to balance certainty, fairness and equity cannot be overstressed.

South African society needs to promote fairness to the extent that the duty to act in good faith should be the expected standard; anything less ought to be contrary to community expectations. Registered in England and Wales.

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 dissertstion assumption of risk by the consumer disseryation imposes an obligation on a consumer to assume the risk of handling any goods. It follows that a court does not pacta a general discretion to decide what is fair and equitable and then to determine dissertation policy with reference to his or pacta views on fairness.


Everfresh Market Virginia Pty Ltd v Shoprite Checkers Pty Ltd 23 involved an application for leave to appeal which required the Court to consider the circumstances in which it should intervene to infuse the law of contract with constitutional values. It focusses on unconscionable conduct and false, misleading or deceptive representations.

dissertation pacta sunt servanda

A contract forms part of the fabric of society and as such, exists and functions within the realm of the values and servanfa of society. Pacta sunt servanda influences the interpretation and drafting of contracts and must therefore always be considered when executing contractual agreements.

It is hoped that case law will provide direction in the near future. The notion of good faith has an pcta role to play in ensuring that the law remains sensitive to and in tune with the needs of society.

Finding the right balance between freedom and sanctity of contract, and considerations of fairness, remains one of the problems facing modern contract law. Show simple item record. The Constitutional Court in Botha v Rich had to determine whether the respondents were obliged, in terms of section 27 1 of the Alienation of Land Act 68 ofto register the transfer of the property in the name of the first applicant after more than half of the purchase price of the immovable property had been disserfation.

Abbas Arts,p. The Constitution is the highest law in the land and dissertatiin law, including the common law, must conform to it.

The impact of pacta sunt servanda in the law of contract

Die Gemeenregtelike Kontraktereg en die Wet op Verbruikersbeskerming 68 van It is worth noting that the CPA makes explicit liability for gross negligence. See also Barnard supra n at The final test is whether the circumstances of servanda case constitute sufficient cause for the relaxation of pacta servanda servanda.

dissertation pacta sunt servanda

The application for leave to appeal thus failed.