A consideration of certain aspects of standard form contracts and exemption clauses [Microfiche] : standard form contracts, the credit receiver's title to sue ex delicto in instalment sale transactions, the nature of a contract and exemption clauses, the burden proof and exemption clauses

Master Thesis


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This dissertation, which is divided into four independent parts, deals with two aspects of standard form contracts: the general nature of standard form contracts and the credit receiver's title to sue ex delicto; and two aspects of exemption clauses: the nature of a contract and exemption clauses and the rules of incidence applicable to exemption clauses. In the first part standard form contracts in general are discussed. A brief historical background shows that standard terms and standard form contracts have a long history, but it is only in the last century that they have become predominant. Under the nature and categories of standard form contracts only the general characteristics are discussed; no definition is formulated because the widespread usage would necessitate too cumbersome a definition. Standard form contracts are generally documents in common form containing comprehensive pre-determined provisions designed to regulate all transactions of a particular type. Two classes of standard form contracts are distinguished: model contract forms (or agreed documents), which are specimen forms, incorporating settled practices, used at the discretion of the parties; and adhesion contracts which contain unilaterally fixed terms and are presented on a take-it-or-leave-it basis. Adhesion contracts arise from statutory intervention, regulations of associations or where individuals or business concerns have sufficiently strong bargaining powers. A further classification based on the situation in which standard form contracts operate distinguishes between horizontal or commercial standard contracts; vertical or commercial consumer standard contracts; end-consumer standard contracts; and personal service standard contracts. This classification is useful in that it provides a framework within which to deal with standard form contracts and to determine whether intervention is justified. The advantages of standardisation include uniformity; a saving in time and expense; costing and planning is facilitated; the promotion of economic stability; and legal certainty. The disadvantages include the shifting of the legal and economic equilibrium to the economically stronger party's advantage, the one-sided control of the contractual terms, the imposition of oppressive contracts, the limitation of the profaners' liability and the curtailment of the adhering party's rights and remedies. In the last section, the proposals for reform, various forms of administrative control and judicial control are briefly examined. The drawbacks of administrative control include the cumbersomeness of the administrative machinery which limits the effectiveness of the control, and the fact that general administrative powers are not always u'sed. to deal with a specific problem. The advantages of administrative control are that general measures can be imposed by administrative bodies acting mero motu, if necessary, and, if efficiently run, the process may be speedier because the procedures are generally more flexible. It is submitted that the Israeli and Swedish methods of providing for the submission of standard form contracts for approval prior to general use should be adopted. The disadvantages of judicial control are that until a body of case law develops uncertainty may arise, and many judges are reluctant to become involved in the morality of contracts. The advantage of judicial control is that general powers provide flexible remedies applicable to a wide range of problems. It is submitted that the English requirement that contractual provisions be reasonable to be enforceable be adopted. In conclusion it is recommended that administrative and judicial control be combined: a representative administrative body to provide prior approval and the courts to be given general powers to refuse to enforce unreasonable provisions. The second part examines the credit receiver's title to sue ex delicto in instalment sale transactions. This important academic and practical problem, which was not clarified in the new Credit Agreements Act, is concerned with whether a non-owner who buys on credit has sufficient interest to sue for patrimonial damage to the goods. The approach adopted here is to ascertain who has title to sue under the Lex Aguila; the legal status of the credit receiver/purchaser; and the various solutions adopted by the courts. Title to sue ex delicto is granted to owners and to a limited number of non-owners; of these only the bona fide possessor is ----,=---- entitled to a claim for the full measure of the damage, the others are limited to their id quod interest. Parties without the title to sue must obtain cession of action from the owner. The credit receiver/purchaser possesses the - goods with the intention of becoming owner; he enjoys all the essential rights and duties of ownership; he bears the risk of damage or destruction whilst remaining liable for the full purchase price; and is obliged to compensate the owner for damage to the goods. The case law is divided as to the credit receiver/purchaser's title to sue and where he has been allowed an action in his own right the juridical basis has varied. Actions have been allowed on the following grounds: (a) the contract itself which binds the purchaser to pay the full price after the risk has passed; (b) the contractual assumption of liability for loss; (c) the bona fide possessor analogy; and (d) as possessor being allowed to sue for the id quod interest which amounts to the risk borne, i.e. for the full amount of the damage. It is now clearly established in our law that the credit receiver/purchaser has title to sue because the second and the last ground has received the sanction of the Appellate Division. A brief comparative study shows that it is a widely accepted principle of law that possession gives title to sue. It is recommended that possible comprehensive statutory remedies dealing with remaining problems be examined. The third part examines the nature of a contract and exemption clauses: the relevance of this is that a clear understanding of each will assist in determining the effect of exemption clauses on contractual rights and duties: the exact content of the contractual obligation can then be established. A contract is an obligation-creating agreement which gives rise to various rights and duties: these may be classified into primary and secondary rights and duties to facilitate an examination of the nature and effect of individual provisions. The primary duty is the duty to perform in the agreed manner. The corresponding primary right entitles the creditor to demand performance and may be enforced by the primary remedy, a claim for performance - specific performance or damages as surrogate for performance. The primary rights and duties are binding and effective ab initio. The secondary rights entitle the creditor or injured party to the remedies of rescission or consequential damages: the corresponding secondary duty binds the debtor to make reparation for foreseeable damage caused by the breach. The secondary rights and duties arise ab initio but may be enforced only after a breach occurs. Both primary and secondary rights and duties may arise expressly or by operation of law. Exemption clauses restrict or exclude rights, liabilities, and remedies which, but for the exemption clauses, would form part of the relevant contracts. They have both a procedural and a substantive effect. A brief historical survey shows that in the Roman Law exemption clauses were either formal substantive stipulations or informal pacta adiecta which provided procedural defences. This substantive/procedural distinction was blurred in the Roman-Dutch law where added agreements have a substantive effect. Exemption clauses have a procedural effect if they limit or exclude adjectival or procedural rights of enforcement. The view that they operate as shields to damages by qualifying or excluding existing liabilities under a contract cannot be supported. Exemption clauses have a substantive effect because they are merely provisions which reflect the actual or presumed intentions of the parties and the rights and duties to which they pertain do not and are not intended to come into existence. Exemption clauses may be classified according to how they operate, and a distinction is here drawn between their excluding and limiting effects on primary, secondary, and procedural rights, as well as on special defences. Primary exemption clauses may be divided into primary exclusion clauses, which prevent naturalia or primary remedies from arising and primary limiting clauses, which merely qualify without excluding the naturalia or primary remedies. Secondary exemption clauses may, similarly, be divided into secondary exclusion clauses, which exclude secondary remedies: and secondary limiting clauses, which limit the creditor's secondary rights. Procedural exemption clauses exclude or qualify procedural rights of enforcement. Special defence examption clauses affect the right to rely on certain special defences based on factors such as defects in the formation of the contract or supervening impossibility. The latter two classes of exemption clauses have a procedurql effect whereas the former their effect.This analysis may assist understanding of the nature and effect thereby facilitating the drafting contracts. two are substantive in in gaining a clearer of exemption clauses and and interpretation of the final part deals with the burden of proof and exemption clauses: it examines the meaning of the expression onus or burden of proof and the rules of incidence applicable to the law of contract and exemption clauses. This is clearly relevant because in all disputes concerning the contents of contracts some party must ultimately prove the presence or absence of provisions. The meaning of the term onus, which must be distinguished from the evidential burden, is the duty borne by a litigant to ultimately satisfy the court that he is entitled to succeed in his claim or defence. Some of the more important rules of incidence are the onus rests upon the person who makes an assertion: or who affirms a fact: or against whom a rebuttable presumption of law operates. In the law of contract, the general rule is that the existence and contents of a contract must be proved by the person relying on the contract. This may be done by tendering a signed contractual document. If the terms of the latter are then disputed the defendant must prove one of the following: that it does not represent the true or complete agreement: that it was not signed animo contrahendi: or iustus error. Where exemption clauses are incorporated by implication or by reference the court's approach is as follows: the person is bound if he knows that the document contains writing relevant to the agreement: if he is unaware of the relevance of the writing but the other party did what was reasonably sufficient to bring the terms to his notice, he is also bound. The requirements of reasonable sufficiency and contemporaneousness of notice applies in all cases of incorporation by implication or by reference and the strictness of the requirements vary according to the circumstances of each case. A proper understanding of the incorporated provisions is not generally required; this it is submitted should be varied to require such understanding in circumstances that warrant it, to prevent disavadvantaged parties from being unfairly surprised by the provisions. Moreover, exemption clauses should be printed or suitably reproduced instead of merely referring to them. Only terms which originate in the contractual concensus need to be proved; the naturalia, being normal incidents of a contract do not have to be proved. Persons disputing naturalia must establish special agreements to that effect. Persons relying on exemption clauses must prove their existence and that they cover the acts that caused the loss in question. If liability for negligence is excluded the party covered by the clause need not disprove such liability: if further grounds for liability are alleged, they must be established. To avoid strict or absolute liability the defendant must prove that one of the acknowledged exceptions is applicable or that such liability was modified by special agreements. The application of the general rules to purchase and sale, letting/and hiring, special defences, unreasonable terms, and third parties is also briefly examined. A party who relies on a lawful contract need not prove that its terms are reasonable or conscionable. In the absence of fraudulent or criminal acts contractual terms are gene~ally· enforceable whether they , are harsh or onerous. However, if gross injustice will result the courts will in some cases uphold the defence of exceptio doli. This tendency and the statutory power given in terms of the Conventional Penalties Act does· not provide a general remedy. It is, therefore, recommended that a statutory remedy along the lines of the English Unfair Contract Terms Act be adopted. This would require that persons relying on exemption clauses must prove that they are reasonable to be enforced; this requirement should only be applicable where a marked inequality of bargaining power exists. Third parties are protected by exemption clauses only is intended by the parties; the onus of establishing obviously borne by the third party. if this this is This examination of the rules of incidence shows that the courts are aware of the injustices that could result if exemption clauses are imposed without restriction. Attempts to intervene are limited by powerful precedents and it is recommended that the legislature should provide a remedy which requires that exemption clauses be incorporated in a clear and conspicuous manner; that they be reasonable; and that the burden of proving this be borne by the party imposing the exemption clause.