Page 98 - PHi_Q&A_Eng-Digital.indd

and transparency in our legal system. At the same time our law has enough
ability to evolve so that our law can remain relevant as our society grows and
places new demands on our legal system.

What print or font is too small for a contract?

Carla Havenga
May 2018

“I recently bought a second-hand car from a local car dealership. Not long
afterwards the car started giving me trouble. When I took it back to the
dealership, they said it was not their responsibility as the contract I had signed
transferred all responsibility to me. They showed me the contract, but most of it
was printed so small that I couldn’t even read it let alone understand it. Surely
I should at least be able to read a contract to be bound by it?”

We have all seen the fine print in standard form agreements, sometimes
with print so small and filled with legalese that even to the trained eye, these
provisions look like another language altogether. In general, in our law there is
a growing trend away from such fine print and legal ‘gobbledygook’ towards
clearer and understandable language.
The general rule in our law in relation to contracts is that if you signed it, you
are bound to it. However, our courts are slowly starting to create exceptions to
this hard and fast rule. In a recent case which also related to fine print, the High
Court held that if the terms of the agreement could not be read, the agreement
could be unenforceable both in terms of our common law as well as falling foul
of the Consumer Protection Act 68 of 2008 (“CPA”) which also requires clear and
understandable language in consumer contracts.

Litigation In determining the enforceability of the agreement under the common law, the
Court considered the duty to act in good faith as well as the notion of public
policy. Good faith reflects the community’s conception of equity, justice and
reasonableness. In this regard, the Court determined that unreadable legal
writing amounts to the failure of establishing an agreement. Public policy also
demands that the enforceability of an agreement must be measured against
the values enshrined in our Constitution.
The court held that in the specific circumstances, public policy would tip the
scales of justice in favour of the consumer, as it would be difficult to prove
consensus on an agreement which is not legible to the class of persons who
are supposed to read and understand it. The Court accordingly found the
agreement to be against public policy and therefore invalid.

92