n South African Law Journal - 'Unexpected terms' and caveat subscriptor
|Article Title||'Unexpected terms' and caveat subscriptor|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Affiliations||1 University of theWitwatersrand|
|Publication Date||Jan 2011|
|Pages||741 - 762|
This contribution examines the reasons underlying the development of the 'unexpected term' defence to the caveat subscriptor rule. It is argued that the development cannot be ascribed to the changes to the doctrinal framework of mistake that took place over the past century. Rather, the explanation is changed attitudes to the assumptions underlying the caveat subscriptor rule in its traditional form, namely careful reading by the signatory as the norm, and the assumption that a deliberate decision not to read the document indicates blanket consent to all terms therein. It is argued that the most important catalyst for the development of the 'unexpected terms' defence was an implicit recognition by our courts that blanket consent only applies to 'expected terms. In addition, the implication of many of the decisions is that careful reading by the signatory is no longer regarded as the norm. However, the courts are ambivalent in regard to the latter, leading to inconsistent judgments with resultant uncertainty in an important area of contract law.
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