Department of Private Law

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Browsing Department of Private Law by Author "De Villiers, M. R. H."

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    Limitations on party autonomy in the context of cross-border consumer contracts : the South African position
    (Juta Law, 2013-01) De Villiers, M. R. H.
    Freedom of contract is a central tenet of South African law. In the field of private international law this principle finds expression in the doctrine of party autonomy. Party autonomy enables the parties to a contract to choose the legal system that will apply to their contract. The doctrine promotes legal certainty and predictability, an important aim of private international law. However, the doctrine presupposes that the parties are in a position to exercise an effective choice - implying an equal bargaining position as well as access to the information necessary to make an informed choice. In the case of the consumer, and particularly the consumer participating in a cross-border contract, it is precisely this lack of equality in bargaining position as well as the absence of access to the necessary information regarding consumer protection in different countries that necessitates the limitation of party autonomy. Consumers may not be provided with an opportunity to choose, or if given an opportunity, they may not be able to make an informed choice. Mandatory rules are one of the methods employed by states to limit party autonomy. It is this method that will form the focus of the article. This article will briefly contextualise when a consumer contract will fall within the ambit of private international law - ie when such a contract will amount to a cross-border contract. Following this contextualisation, the article will explain the doctrine of party autonomy as recognised in the field of private international law, and consider the rationale behind recognising the doctrine as well as the need for its limitation. Next the article will study the current South African approach to party autonomy and its implications for consumer protection. The discussion of the South African position will focus on the Electronic Communications and Transactions Act, the Consumer Protection Act, and the National Credit Act, evaluating whether the protections provided by the aforementioned acts qualify as mandatory rules that will be applicable to cross-border consumer contracts whenever South Africa is the forum, regardless of the legal system the parties chose to apply to their contract. The application of mandatory rules of third countries falls outside of the scope of this article.