n South African Law Journal - Of reliance, self-reliance and caveat subscriptor

Volume 129, Issue 1
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The development of the 'unexpected term' defence to the caveat subscriptor rule can largely be ascribed to changed judicial attitudes to two assumptions underlying the rule, namely careful reading by the signatory as the norm, and that a deliberate decision not to read a contract constitutes blanket consent to all its terms. In this contribution, it is argued that the main reasons for this change is an unresolved ideological tension between individualist and communitarian values, and the advent of standard-term contracts. The failure of the courts to acknowledge these issues has led to inconsistent application. In order to resolve the problem, it is suggested that a distinction should be drawn between contracts subject to negotiation and standard-term contracts, since they raise different policy issues. In relation to the former, it is argued that the point of departure should still be that the signatory is expected to ascertain the terms of the contract, but that only 'reasonable reading' should be expected from him. In relation to standard-term contracts, I am of the opinion that the issues raised by them cannot be resolved by way of mistake, and that the appropriate solution is direct content control over the terms of such contracts.

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