Browsing by Author "Van Deventer, Susanna Maria"

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    Regulating the form and substance of online contracts : South African and foreign perspectives
    (Stellenbosch : Stellenbosch University, 2020-03) Van Deventer, Susanna Maria; Du Plessis, Jacques; Myburgh, Franziska; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This dissertation focuses on the procedural and substantive problems which arise in the context of online contracts, i.e. standard form contracts appearing in electronic form. Although standard form contracts are not a new phenomenon, the study identifies certain attributes of online contracts which justify specific consideration of this contracting form. The aims of this dissertation are two-fold: it first determines how online contracting fits into existing legal principles in South African law, and secondly analyses and evaluates this outcome from a comparative perspective. It is argued that the unique characteristics of online contracts – such as their length and ubiquity – render it more difficult to establish assent to these contracts. This concern has featured prominently in American jurisprudence. Central to this issue is the fact that it is not reasonable for consumers to study online contracts, because the cost of reading (in the form of time spent) outweighs the potential benefit. Consequently, the dissertation analyses the formation of online contracts in the South African context. A comparative evaluation with primarily the American legal system – which draws on case law, the provisions of the Draft Restatement of the Law, Consumer Contracts and criticism by American jurists – is used to assess this outcome. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. The conclusion is reached that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. A possible exception in the form of voluntary, opt-in consent, as recognised in the European General Data Protection Regulation, is examined and found advisable for specific clauses. It is further argued that, in the South African context, the unexpected terms doctrine can provide important protection to consumers’ reasonable expectations, and can encourage suppliers to identify surprising terms and bring them to the attention of consumers. This requires courts to recognise that consumers reasonably decide not to read online contracts, and that consumers’mistakes about surprising terms in online contracts must almost always be reasonable. The dissertation further identifies and considers specific substantive problems that are affected by uniquely online risks. These include clauses relating to the use of personal information and consumer-generated content, clauses affected by the ongoing nature of online contracts (such as unilateral variation and unilateral termination clauses) and clauses affected by the global nature of online contracts (such as choice-of-law and choice-of-forum clauses). These clauses are evaluated in the light of current measures of substantive control recognised in South African law. The discussion also includes a consideration of procedural issues which could impact the evaluation of the substantive fairness of terms, such as the inequality of bargaining power and possibility of deception. It is found that current measures are inadequate to ensure proper protection for online consumers. Taking guidance from European law, the dissertation suggests legislative amendments to address these issues.
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    Set-Off in South African Law : challenges and opportunities
    (Stellenbosch : Stellenbosch University, 2016-03) Van Deventer, Susanna Maria; Myburgh, Franziska; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law
    ENGLISH ABSTRACT : This study focuses on the principles surrounding the operation of set-off in South African law. It is evident that no uniform answer exists to the question of how set-off operates: it either operates automatically as soon as its requirements are met or in terms of a declaration by one of the parties, but with retrospective effect. This thesis examines the uncertainty and problems surrounding these two opposing approaches to the operation of set-off, and further considers the impact of sections 90 and 124 of the National Credit Act 34 of 2005 (NCA) on set-off. In order to evaluate the two approaches to set-off, their historical origin, practical effect and the policy considerations informing them are analysed. This analysis is also informed by comparative perspectives on the operation of set-off adopted in civilian jurisdictions. The thesis further examines the circumstances in which a party will be precluded from relying on set-off. It focuses on an agreement between the parties to exclude set-off, waiver of a party’s right to set-off and the circumstances in which a party can be estopped from invoking set-off. It is shown that neither of the approaches to set-off adopted in South African law provides an adequate explanation for the way in which set-off is applied in practice. The thesis illustrates that this can be attributed to the fact that the automatic approach affords insufficient recognition to the autonomy of contracting parties and that the retrospective approach leads to practical difficulties. The uncertainties which exist regarding the exclusions of the right to invoke set-off are also highlighted, as well as the difficulty in reconciling these exclusions with the automatic approach to set-off. The examination of sections 90 and 124 of the NCA focuses on the interpretation of these sections, and considers whether and to what extent, a limitation on a credit provider’s right to invoke set-off is desirable. It is concluded that these sections are unclear and that, although certain limitations of a credit provider’s right to invoke set-off are justified, the conditions set by the NCA are too stringent. Legislative reforms are suggested to clarify and improve the protection granted by the NCA. Finally, it is argued that South African courts should take note of international developments regarding the operation of set-off and opt for a solution which is more in line with modern commercial reality. Such a solution can be found in the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law, which recommend that set-off should be effected by a notice with prospective effect. It is shown that this approach ensures legal certainty and offers a solution which aligns legal and practical reality.