Secondly, if the clause is reasonable, whether it should be enforced in the light of the circumstances which prevented compliance with the time limitation clause.
The Quiet Revolution in Contract Law. By contrast, insisting on compliance with a day time bar clause against a claimant who deliberately neglected to comply with it, would not be unfair.
The applicable test In Mohlomi, this Court had to consider the constitutional validity of a time limitation contained in section 1 of the Defence Act 44 of This would require the party seeking to avoid the enforcement of the clause to demonstrate why its enforcement would be unfair and unreasonable in the given circumstances.
Public policy takes into account the necessity to do simple justice between individuals. In his replication, the applicant conceded non-compliance with clause 5.
The Supreme Court of Appeal reasoned as follows: It does not take sufficient account of the fact that at least since Nino Bonino v De Lange, 39 our courts have recognised that contracting parties may not prevent one another from having disputes arising from the contract resolved by a court of law.
Several additional counterclaims were dismissed by agreement of the parties, and the case proceeded to trial without jury. Contracts of Adhesion Introduction Standard form contracts offered on a take-it-or-leave-it basis by a party with considerable bargaining power present another facet of the assent problem.
Addressing the constitutional challenge based directly on section 34, the Supreme Court of Appeal held that the Constitution does not prevent time bar provisions in contracts where these are entered into freely and voluntarily. The issue whether the peculiar situation of contracting parties should enter the equation in assessing a contractual term, which is said to offend public policy, is neither novel nor free from controversy.
See generally Rakoff T. This would indeed be unfair to the respondent. I accept that there may well be time limitation clauses that are so unreasonable that their unfairness is manifest. The proper balance, however, is not stated, and his own alternative, background law, must itself be formulated in light of what the proper balance should be.
Counsel for the respondent submitted that the applicant should not be permitted to rely on the public policy argument because this argument was being raised for the first time in this Court. The inflexibility argument The other flaw that the Court found in the statutory provision involved in Mohlomi was that it was inflexible in that it insisted on strict compliance with its provisions regardless of how harsh this may have turned out to be in a given case.
He submitted that, firstly, on its face, the period of 90 days is so manifestly unreasonable that it offends public policy; and secondly, the clause is unreasonable because it insists on compliance with its provisions regardless of the circumstances.
That the clause limits the right of the applicant to seek judicial redress cannot be gainsaid. The evidence that the Supreme Court of Appeal had in mind was: To this extent, the parties agreed on a terse statement of facts recording the existence of the insurance contract, the occurrence of the accident and the submission of the written claim to the respondent on 2 Decemberthe repudiation of the claim on 7 January and the institution of legal action on 8 January Ordinarily, the answer should not rest with the peculiar situation of the contracting parties, but with an objective assessment of the terms of their bargain.
The Court held that the impugned provision limited the right of access to court and that this limitation was not reasonable and justifiable under section 33 1 of the interim Constitution, the predecessor of section 36 1. All law, including the common law of contract, is now subject to constitutional control.
As I understand the argument, the requirement of good faith will preclude the respondent from insisting on compliance with the time limitation clause when it will be unjust to the applicant.
Professor Rakoff, in an ambitious article, argues that contracts of adhesion should be presumptively unenforceable. The applicant has raised important constitutional issues relating to the proper approach to constitutional challenges to contractual terms.
This consideration is expressed in the maxim pacta sunt servanda which, as the Supreme Court of Appeal has repeatedly noted, 40 gives effect to the central constitutional values of freedom and dignity.
It was neither considered by the High Court nor by the Supreme Court of Appeal, so the argument went. representations to be binding); Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv.
Rev.–29 () (stating that standardized contracts shift risks to consumers). Corporations and Autonomy Theories of Contract: A Critique of the New Lex Mercatoria Nathan B.
Oman CORPORATIONS AND AUTONOMY THEORIES OF Todd Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV.
. Intuitions and Suggestions for Reconstruction Shmuel I.
Becher Esther Unger-Aviram The Law of Standard Form Contracts: Misguided Intuitions and Suggestions for Reconstruction 2. See generally, Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV.
L. REV. (). §at 29–30 (3d ed.
) (discussing adhesion contracts). 2. See Todd D.
Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV.(). Other factors include whether the contract was drafted by, or on behalf adhesion contracts and holding the shortened period of limitations. Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harvard Law Review () at [iv] Law of Business Contracts in India, edit.
Consumer Assent to Standard Form Contracts and the Voting Analogy Wayne Barnes CONTRACTS AND THE VOTING ANALOGY Wayne Barnes ()): see also Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 89 () ("Today, very likely the majority of signed documents are adhe.Rakoff contracts of adhesion an essay in reconstruction