The use of black and grey lists in unfair contract terms legislation : a comparative perspective
CITATION: Naudé, T. 2007. The use of black and grey lists in unfair contract terms legislation: A comparative perspective. South African Law Journal, 124(1):128-164.
The original publication is available at https://journals.co.za/content/journal/ju_salj
This contribution considers the mechanism of lists of prohibited and suspect terms ('black lists' and 'grey lists') in unfair contract terms legislation from a comparative perspective. It sets out the arguments in favour of the use of black and grey lists and considers and rejects criticism against their use. A comparative study leads to identification of general principles relevant to the drafting of lists. Some of the questions discussed are whether lists should be confined to consumer contracts and non-negotiated terms and whether and how a grey list should affect the burden of proof, on both of which international practice diverges. Finally, fourteen categories of terms which are commonly listed in various countries' legislation are identified and discussed.