The right to fair, just and reasonable terms and conditions under the Consumer Protection Act and the German standard business terms legislation in comparative perspective

Abstract

This doctoral thesis deals with the right to fair, just and reasonable terms and conditions, set out in sections 48 to 52 of the Consumer Protection Act, and the theoretical and practical problems involved. These provisions are compared to the German standard business terms legislation with regard to the respective scope of application of both regimes, their incorporation requirements, the content control, the interpretational control as well as their redress mechanisms. The objective is to provide clarity of the South African terms and conditions legislation and to find possible solutions regarding uncertainties in connection with the Act. Where oversights, ambiguities or interpretational or practical problems exist, the suggested recommendations to the existing provisions shall provide for possible solutions and more certainty. The most important findings of this thesis are that the content control performed according to the Act offers a similar level of protection to the German regime. Despite this comparable level of protection for individual consumers, the lack of an abstract challenges mechanism and the application of a particular-personalised approach are an obstacle for effective consumer protection and the eradication of unfair terms. The introduction of a supra-individual generalised approach and an abstract challenges mechanism would thus tremendously enhance consumer protection with regard to mass contracts. What is more, an 'open' content control as performed in the German regime is preferable to an approach where the interpretational control takes place after the content control, or where both controls are merged. A streamlining of the complicated South African enforcement mechanism and the amendment of some procedural provisions would be beneficial too. It is also demonstrated that the German approach is more proactive than the South African regime in this regard.