The Current Status of the Enforceability of Contractual Exemption Clauses for the Exclusion of Liability in the South African Law of Contract

• Jurisdiction: South Africa
• Citation: (2008) 20 SA Merc LJ 496
• Published date: 25 May 2019
• Author: Philip N Stoop
• Date: 25 May 2019
• Pages: 496-509

The Current Status of the Enforceability of

Contractual Exemption Clauses for the

Exclusion of Liability in the South African Law

of Contract

PHILIP N STOOP*

University of South Africa

1 Introduction

Exemption clauses are contractual terms that exclude, alter or limit the

liability that normally f‌lows from contractual relations. These clauses are used

in nearly all standard contracts and are continually investigated because they

are misapplied. When courts consider the status of the enforceability of

exemption clauses, they normally approach it from the bases of consensus,

public policy, limiting legislation and/or interpretation. The purpose of this

article is to address concisely the status of the enforceability of exemption

clauses in the South African law of contract.

2 What Is an Exemption Clause?

Exemption clauses are contractual terms that aim to limit, alter or exclude

the liability, obligations or remedies of a contracting party (contractant) that

normally emanate from a contract. These clauses thus concern any agreed

deviation from the ruling law with regard to contractual or delictual liability

that affects the rights, obligations, duties and procedural remedies normally

emanating from a specif‌ic contract.

1

In English, these clauses are referred to as ‘exemption clauses’,

‘exclusionary clauses’, ‘exception clauses’ or sometimes ‘disclaimers’, but for

the sake of convenience the term ‘exemption clauses’ is used.

2

Nearly all

standard contracts contain exemption clauses.

3

As standard contracts are

frequently used in business, exemption clauses are sometimes improperly

relied on by one contractant against another.

4

The content of standard

contracts is usually f‌ixed and determined unilaterally, and the other party then

only has the choice of accepting the f‌ixed contract terms in order to contract,

so much so that freedom of contract (in the sense of a party’s concluding a

contract when, with whom and on the terms that he chooses) is only a theoretical

* BCom LLB LLM (UP). Lecturer, Department of Mercantile Law, School of Law, University of

South Africa.

1

S van der Merwe, LF van Huysteen, MFB Reynecke & GF Lubbe Contract: General Principles 3

ed (2007) at 297; C van Loggerenberg ‘Onbillike Uitsluitingsbedinge in Kontrakte? ’n Pleidooi vir

Regshervorming’ 1988 Tydskrif vir die Suid-Afrikaanse Reg 407 at 407-8.

2

Van Loggerenbergop cit note 1 at 408; Van der Merwe op cit note 1 at 297, 310-1.

3

Van Loggerenbergop cit note 1 at 409.

4

Idem at 412-3.

496

(2008) 20 SA Merc LJ 496

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