n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Background to the regulation of fairness in consumer contracts

Volume 27, Issue 2
  • ISSN : 1015-0099
  • E-ISSN: 1996-2185



The issue of fairness in contracts is often described in terms of juxtapositions such as freedom of contract as against fairness, or individualism as against paternalism, collectivism, or welfarism. The concept 'fairness' has been implemented in full in consumer contracts by the Consumer Protection Act (CPA), and the emphasis therefore moved from freedom of contract to fairness. To understand what the concept 'fairness' entails, one has to understand its philosophical context. In this article, I shall therefore explain the philosophical context within which the regulation of fairness in the law of contract, with specific reference to the CPA, must be understood. This article examines a freedom-oriented approach as against a fairness-oriented approach with specific reference to procedural and substantive factors.

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