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Report No. 199

Guidelines to Court: Procedural aspects:

section 20 of the Draft Bill in South Africa provides that a Court may take certain guidelines into account for determining unreasonableness, unconscionableness or oppressiveness in contracts or terms. They are listed. The 'procedural' ones are as follows:

"2(a) the bargaining strength of the parties to the contract relative to each other;

(b) ............................

(c) ............................

(d) in relation to commercial contracts, reasonable standards of fair dealing or in relation to consumer contracts, commonly accepted standards of fair dealing;

(e) whether or not, prior to or at the time of contract was made, its provisions were subject to negotiation;

(f) whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alternation of the contract or to reject any of the provisions thereof;

(g) whether Latin expressions are contained in a term or whether the term of a contract is otherwise difficult to read or understand;

(h) ...............................

.......................

(x) ..........................

(y) the context of the contract as a whole, in which case the Court may take into account:

the identity of the parties and their relative bargaining position,

the circumstances in which the contract was made,

the existence and course of and negotiations between the parties,

any usual provisions in contracts of the kind, or any other factor which, in the opinion of the Court, should be taken into account.



Unfair (Procedural and Substantive) Terms in Contract Back




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