Doctoral Degrees (Private Law)

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Browsing Doctoral Degrees (Private Law) by browse.metadata.advisor "Myburgh, Franziska"

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    Regulating the form and substance of online contracts : South African and foreign perspectives
    (Stellenbosch : Stellenbosch University, 2020-03) Van Deventer, Susanna Maria; Du Plessis, Jacques; Myburgh, Franziska; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This dissertation focuses on the procedural and substantive problems which arise in the context of online contracts, i.e. standard form contracts appearing in electronic form. Although standard form contracts are not a new phenomenon, the study identifies certain attributes of online contracts which justify specific consideration of this contracting form. The aims of this dissertation are two-fold: it first determines how online contracting fits into existing legal principles in South African law, and secondly analyses and evaluates this outcome from a comparative perspective. It is argued that the unique characteristics of online contracts – such as their length and ubiquity – render it more difficult to establish assent to these contracts. This concern has featured prominently in American jurisprudence. Central to this issue is the fact that it is not reasonable for consumers to study online contracts, because the cost of reading (in the form of time spent) outweighs the potential benefit. Consequently, the dissertation analyses the formation of online contracts in the South African context. A comparative evaluation with primarily the American legal system – which draws on case law, the provisions of the Draft Restatement of the Law, Consumer Contracts and criticism by American jurists – is used to assess this outcome. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. The conclusion is reached that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. A possible exception in the form of voluntary, opt-in consent, as recognised in the European General Data Protection Regulation, is examined and found advisable for specific clauses. It is further argued that, in the South African context, the unexpected terms doctrine can provide important protection to consumers’ reasonable expectations, and can encourage suppliers to identify surprising terms and bring them to the attention of consumers. This requires courts to recognise that consumers reasonably decide not to read online contracts, and that consumers’mistakes about surprising terms in online contracts must almost always be reasonable. The dissertation further identifies and considers specific substantive problems that are affected by uniquely online risks. These include clauses relating to the use of personal information and consumer-generated content, clauses affected by the ongoing nature of online contracts (such as unilateral variation and unilateral termination clauses) and clauses affected by the global nature of online contracts (such as choice-of-law and choice-of-forum clauses). These clauses are evaluated in the light of current measures of substantive control recognised in South African law. The discussion also includes a consideration of procedural issues which could impact the evaluation of the substantive fairness of terms, such as the inequality of bargaining power and possibility of deception. It is found that current measures are inadequate to ensure proper protection for online consumers. Taking guidance from European law, the dissertation suggests legislative amendments to address these issues.