Policing Standard Form Contracts in Germany and South Africa: A Comparison

Abstract

The aim of this dissertation is to compare South African law on standard form contracts against the corresponding German law. Thus, the responses of both legal systems to the special situation occurring in cases of standard form contracts will be compared and evaluated. Thereby, the focus of this dissertation is to determine whether South African law on standard form contracts provides adequate protection for the submitting party. German law on standard form contracts provides the basis and outline against which South African law will be critically evaluated. German law was selected for this task, as it was one of the first legal systems, which enacted legislation, and addresses the issue systematically. It should be noted that this dissertation does not aim to evaluate German law on standard form contracts. In the first part of this dissertation I will provide a brief definition of the notion of freedom of contract and consumer protection. I will then proceed to highlight the relevance of standard form contracts in modern society and outline the problems associated with such contracts. This will be followed by a discussion of whether standard form contracts can be considered as classical contracts. In the second part of this dissertation I will outline the law on standard form contracts in both jurisdictions. Concerning the German law, I will give a brief overview of what the relevant provisions state. Concerning South African law, I will briefly illustrate what the relevant common law appears to be without going into far too much depth. Such outlines of the applicable laws are necessary in order to acquaint the reader with some of the important themes that this dissertation will discuss in detail. In part three the actual comparison and evaluation will follow. The comparison will include a detailed illustration of the law on standard form contracts in both jurisdictions. Thereby, some repetition in regard to the applicable law cannot be avoided. Thereafter, the evaluation will more specifically investigate whether South African law is effective in achieving its aims and whether South Africa should introduce legislation on standard form contract terms