The influence of the Consumer Protection Act 68 of 2008 on the concept of plain language in standard-form contracts

Abstract

The purpose of this dissertation and the research contained therein was to discuss and investigate the influence of the CPA on concept of plain language in standard-form consumer contracts. In order to do so, it was important to discuss the historic background of the law of contract as well as the position where the CPA was not applicable. This refers to a position where common law principles determined the law of contract (including standardform contracts). One of the fundamental principles of common law is freedom of contract. Freedom of contract is a notion that parties are free to decide whether or not to contract, with whom to contract, the nature of the contract and the terms of the contract. Despite the fact that freedom of contract is deeply engrained in our legal system, does not erase the fact that when it comes to consumer contracts (in particular standard-form contract or contrat d adhésion) it is to the detriment of consumers. Under the principle of freedom of contract the assumption is that parties have equal bargaining powers which is, in fact, not always true. In light of the above, the South African legislature promulgate the Consumer Protection Act, Act 68 of 2008 which aims at improving the quality of information conferred to consumers by the sellers, to ensure consumers make informed decisions which are in line with their needs prior to contracting. Though the CPA changes the common law, it still makes provision to preserve common law. Section 2(10) of the CPA leaves no doubt that the common law is not replaced in its entirety by the Act for those matters that apply to it. The introduction of the CPA brought about changes to the South African consumer protection law. One of the changes is Section 22 which deals with plain language. A fundamental consumer right under the CPA, the consumer s right to disclosure and information (Part D) of the Act includes section 22 within its ambit and provides that consumers have the right to information in plain and understandable language. It is perceptible from this that the legislature envisions the plainness of language in contracts (including standard-form contracts) and other legal documents as means to redress imbalances between suppliers and consumers. While it is undeniable that the will now be additional burdens on being in business, everyone will benefit from the CPA. We are all consumers, after all.