Lessons from America? a South African perspective on the draft Restatement of the Law, Consumer Contracts
Date
2018
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Abstract
The American Law Institute is drafting a Restatement of the Law,
Consumer Contracts. It deals at a very broad level with various
requirements for the formation, validity, and proof of consumer
contracts and terms, and especially with how they are to be applied
in modern commercial environments, characterised by the
widespread use of standard terms in online contracting. At the heart
of the Draft Restatement lies the notion that it reflects a ‘grand
bargain’ or trade-off in American consumer contract law. While its
rules follow a ‘permissive’ approach to assent, through granting
businesses significant freedom to draft contract terms, the effect of
these rules is balanced by greater ex post substantive control,
through imposing mandatory restrictions on terms. The purpose of
this paper is to view this central idea of the Draft Restatement, as
well as some related features, from the perspective of South African
consumer contract law. Aspects that enjoy attention include the
treatment of standard contracts, rules on actual or deemed assent,
various forms of substantive control, the relationship between
common-law and statutory regulation of consumer contracts,
restrictions on adducing evidence, and the most appropriate
institutions for granting consumers effective relief.
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Keywords
Law Consumer Contracts