Against the strict application of the caveat subscriptor rule in the context of contracts of necessity.

Abstract

This dissertation critically examines the common law caveat subscriptor rule and argues against the strict application of the rule in the context of ‘contracts of necessity’ (which is defined in the research paper). I will begin by explaining what exactly the caveat subscriptor rule entails and how it functions within the realm of mistake in contract as a species of the reliance theory which the South African law of contract endorses. I will then proceed to outline the narrow grounds recognized by the courts to date upon which one may escape the working of the caveat subscriptor rule. In section II of the paper I will briefly discuss the rise of the consumer protection movement and consider the extent to which the Consumer Protection Act now provides added protection to the unwitting signatory against the strict application of the rule. In section III I will critically examine the underlying presumptions of the caveat subscriptor rule which purport to justify the existence and application of the rule itself. I will then proceed to illustrate that while the assumptions underlying the caveat subscriptor rule may have been accurate and relevant in the past, these assumptions are no longer in keeping with the modern era of mass marketing characterized by the widespread use of standard-form contracts and consumer non-readership, which is reflected in recent judgments dealing with unread contract terms. In section IV I will examine the modern reality of consumer non-readership caused by various innate psychological factors and behavioural biases, particularly in the context of contracts of necessity. In section V I show that a change in judicial attitude towards unread contract terms and increased fairness towards the signatory is warranted not only in light of modern consumer behavior, but also in light of the courts constitutional mandate to develop the common law in accordance with section 39 (2) of the Bill of Rights as well as its underlying values. In section VI will propose a new basis for escaping the strict application of the rule grounded in public policy and will conclude by suggesting some practical methods for reform under the common law.