A person who signs a contract is bound by the ordinary meaning and effect of the words, which appear above his or her signature. This is the principle of Sanctity of Contract. Therefore, if someone chooses not to read what is contained in a contract, he or she is taking the risk of being bound by it.
The cautionary phrase caveat scriptor (let the person signing beware) is used to describe this situation.
Another principle of contract is the Parol Evidence Rule. According to this rule, once a contract is signed between contracting parties, that contract is binding upon the facts as stated within the contract. A court will only consider the facts within the contract as evidence of what was agreed between the parties. External evidence is treated as irrelevant.
The Consumer Protection Act (CPA) seeks to lessen the imbalance between contracting parties and impacts contracts in the following ways. The court can now sever or alter part of a contract (Section 52), and a party may now get out of a contract if:
• it arose through direct marketing (Section 16);
• a consumer did not have the opportunity to examine the goods before delivery (Section 20);
• the goods are unsuitable for an intended purpose (Section 55);
• the transaction is an advanced booking, reservation or an order (Section 17);
• the Parol Evidence Rule has been relaxed by the Act. A court can now hear evidence from sources other than the contract itself (Section 51).
It is clear from the abovementioned that the CPA has a significant impact on common law. If you are concerned about how these changes might affect you, it is advisable to contact your attorney for advice.
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Contributed by: Hestelle Graaff BA Law (UP) LLB (UP)