Fourie NO v Hansen and Another

• Jurisdiction: South Africa
• Citation: 2001 (2) SA 823 (W)

Fourie NO v Hansen and Another
2001 (2) SA 823 (W)

2001 (2) SA p823

Citation	2001 (2) SA 823 (W)
Case No	98/6713
Court	Witwatersrand Local Division
Judge	Blieden J
Heard	October 20, 1999; October 21, 1999; October 22, 1999; October 23, 1999; October 24, 1999; October 25, 1999; October 26, 1999; October 27, 1999; October 28, 1999
Judgment	January 24, 2000
Counsel	J J Wessels SC for the plaintiff.; N de Vos for the first defendant.; G Turner for the second defendant.

Flynote : Sleutelwoorde F

Contract — Reality of consent — Mistake — Maxim caveat subscriptor — When applicable — Consensus — Absence G of — Party signing standard form contract without reading it, on assumption that it did not contain unexpected terms — Signatory not bound if contract containing term that reasonable man would not expect to find therein unless proper notice given to signatory that such term contained in contract — Duty of party introducing such term to standard form contract to ensure that it was printed in such manner that H attention of signatories drawn thereto — In absence thereof maxim caveat subscriptor not applicable — Words printed above place for signatory's signature, certifying that signatory had 'read and agreed to terms and conditions of' contract — Such words not excluding effect of signatory's mistake if signatory not alerted to presence in I contract of unexpected term — In casu party not bound by unexpected exemption clause printed in small type on rear of printed form.

Letting and hiring — Lease of movables — Duties of lessor — Duty of lessor to apply expertise in ascertaining and checking condition of property when letting it out by employing sufficiently trained persons — Not duty of lessee to ascertain defects in property — Lessee entitled to expect that leased J

2001 (2) SA p824

property in proper condition — However, duty of lessor limited to discovering reasonably ascertainable defects in property — If A no amount of reasonable inspection leading to discovery of defects, lessor not liable — Car rental company letting vehicle with defective tyres — Such defects reasonably discoverable before vehicle let — Car rental company liable for damage suffered by passengers as result of accident caused by defective tyres. B

Damages — Remoteness of — Novus actus interveniens — Failure of claimant to detect cause of subsequent damage — Not novus actus interveniens if no duty on claimant to detect such cause — Duty of lessor of movable property to apply expertise in ascertaining and checking condition of property when letting it out, by employing C sufficiently trained persons — Not duty of lessee to ascertain defects in property — Lessee entitled to expect that leased property in proper condition — Failure of lessee to detect defect subsequently causing injury not novus actus interveniens, interrupting causation between lessor's failure to detect defect, and damage caused thereby — In casu car rental company letting vehicle with defective tyres — Such defects reasonably discoverable before vehicle D let — Car rental company liable for damage suffered by passengers as result of accident caused by defective tyres.

Negligence — Liability for — Duty of care — Fitness of property for intended use — Duty of lessor of movable property to apply expertise in ascertaining and checking condition of property when letting it out, by employing sufficiently trained persons — Not duty of lessee to ascertain defects in property — Lessee entitled to expect that leased property in proper condition — However, duty of lessor only being to discover reasonably ascertainable defects in property — If no amount of reasonable inspection leading to discovery of defects, lessor not liable — Car rental company letting vehicle with defective tyres — Such defects reasonably discoverable before vehicle let — Car rental company liable for damage suffered by passengers as result of accident caused by defective tyres.

Maxims — Caveat subscriptor — When not applicable to contract signed by party who had not read it.

Delict — Liability for — Causation — Legal causation — Novus actus interveniens — Failure of claimant to detect cause of subsequent damage — Not novus actus interveniens if no duty on claimant to detect such cause — Duty of lessor of moveable property to apply expertise in ascertaining and checking condition of property when letting it out, by employing sufficiently trained persons — Not duty of lessee to ascertain defects in property — Lessee entitled to expect that leased property in proper condition — Failure of lessee to detect defect subsequently causing injury not novus actus interveniens, interrupting causation between lessor's failure to detect defect, and damage caused thereby — Car rental company letting vehicle with defective tyres — Such defects reasonably discoverable before vehicle let — Car rental company liable for damage suffered by passengers as result of accident caused by defective tyres.

Contract — Reality of consent — Mistake — Exemption clause — Exemption clause printed in small type on rear of standard form contract, in such manner that attention of signatory not drawn thereto — Exemption clause under circumstances being unexpected term in contract, which reasonable man would not expect — No notice to signatory that exemption clause contained in contract — Signatory not bound — Maxim caveat subscriptor not applicable — Words printed above place for signatory's signature, certifying that signatory had 'read and agreed to terms and conditions of' contract — Such words not excluding effect of signatory's mistake if not alerting signatory to presence in contract of unexpected term.

Headnote : Kopnota

Several co-workers of a company situated in Mpumalanga, including the first defendant and one D, wished to travel to Cape Town to participate in a sporting event. Their employer was prepared to hire a E microbus from the second defendant, a car rental company, to convey them, but the second defendant insisted that a 'living person' should hire the vehicle. Accordingly, it was decided that D would formally hire the vehicle from the second defendant and his name was filled in as the 'renter' of the vehicle in all the relevant documentation. F However, for reasons of convenience the microbus was actually delivered to the home of the first defendant, who signed a document that was presented to him by an employee of the second defendant. He did not read it before signing, regarding it merely as a document that had to be signed in order to take delivery of the vehicle. The document was in fact a rental agreement, which contained, in minute type on the back G thereof, the following clause 10: 'Avis [the second defendant] shall not be liable for any damage arising out of any defect in or mechanical failure of the vehicle. . . .' Above the place where the first defendant signed, in the same small type (although in capitals) the following words appeared: 'I have read and agree to the terms and conditions on both sides of this agreement. . . .' The vehicle was used by the co-workers to travel to Cape Town, where they participated in the sporting event. During their return trip, while the first H defendant was driving, one of the rear tyres of the microbus developed a puncture, and had to be changed. It was then discovered that that tyre was badly worn. The first defendant asked his fellow passengers to inspect the other rear tyre, while he personally inspected the front tyres, and they assured him that it was in good condition. Accepting I their assurance, he drove on. Shortly thereafter, however, the other rear tyre burst, whereupon the vehicle veered off the road and turned over. It afterwards transpired that the tyre had burst because its inner shoulder was badly worn. D suffered brain damage as a result of the accident. The plaintiff was appointed as D's curator ad litem, and she instituted action against both defendants. The cause of action against the first defendant was his alleged negligence in driving the vehicle. J

2001 (2) SA p825

The cause of action against the second defendant was its alleged negligence in letting the vehicle and A permitting it to be driven when the tyres were in a defective condition, rendering them unsafe for use on the vehicle. The second defendant denied that it had been negligent as alleged by the plaintiff and also raised certain factual defences. In a separate defence it pleaded that, on the basis of clause 10 of the rental agreement, it was B absolved from liability for the damage caused to D as a result of the alleged defects in the tyres of the microbus.

Held, as to the defence based on clause 10, that there was no evidence of any agreement of agency between D's and the first defendant, who had actually signed the rental agreement. Even if it were accepted that D and the first defendant had agreed that the latter would take delivery of the microbus, the agreement did not involve D's C appointing the first defendant as his agent in accepting the terms and conditions of the rental agreement, in particular clause 10. That was particularly so where there was no evidence that D had had any knowledge of the existence of, or of what was contained in, the rental agreement, let alone that he had agreed to be bound by it. (At 831G - I and 832B/C - C.) D

Held, further, that, even if D were bound by the signature of the first defendant, that would not automatically bind him to the terms of the rental agreement. A reasonable man did not present for signature without reading (as opposed to a clause by clause discussion) a document containing terms which no reasonable man would expect to find therein. Put another way: the unwitting signatory of a contract, which contained unexpected terms, could not be said so to have E conducted himself that a...