Terms & Conditions Apply – Stacey Bonser

SCENARIO: You recently went to your local second hand goods store and bought your son a previously owned laptop for him to do his school projects. You tested it at the shop and everything seemed to be in good working order. But, as you get home and your son plugs the laptop in to charge, for some reason it doesn’t seem to want to turn on. You decide to take it back to the shop but the response you get is that all liability/risk of the laptop was transferred to you when you paid and walked out of the shop with the laptop. They hand you the contract but the fine print was is so small and illegible and full of legal jargon that it was impossible for you to read, let alone to understand what any of it means. Now, you’re stuck with a dud laptop. What do you do? 

We’ve all seen the tiny asterix at the bottom of adverts that reads “T’s and C’s apply” when company’s advertise deals that look, and mostly are too good to be true and the fine print that goes along with those dreadful terms and conditions. In most instances, the font is so small and when handed a 10 page document with font so small, you sign thinking you have no choice in order to get your goods, but, who really ends up reading and understanding the fine print?

In South African law, the general rule is that if you sign a contract, you are bound by its terms and are presumed to have read the terms and conditions. However, lately this trend seems to be changing.

The main legislation that applies to these types of contracts is the Consumer Protection Act, which requires general consumer contracts to be in plain, clear and understandable language, and not the usual legal “gibberish”.

A judgment that was delivered in the High Court stated that an agreement was invalid and not enforceable owing to the fact that the the fine print was so small, a reasonable person could not be expected to have been able to read it. The court based this decision on the principle of good faith and in consideration of public policy. This will not always be the case, but it does serve as a ground to challenge the validity of a contract if the fine print was too fine. 

If you seem to have found yourself in a predicament such as the scenario above and require any further information on this topic you are welcome to contact our offices on 011 897 1900 or info@tuckers.co.za

Article contributed by Stacey Bonser of Tuckers Inc.