Title page for ETD etd-07202012-131541


Document Type Master's Dissertation
Author Du Plessis, Hanri Magdalena
URN etd-07202012-131541
Document Title The unilateral determination of price in contracts of sale governed by the Consumer Protection Act 68 of 2008
Degree LLM
Department Mercantile Law
Supervisor
Advisor Name Title
Prof C J Nagel Supervisor
Keywords
  • contractual discretions
  • contracts of sale
  • contractual autonomy
  • consumer protection
  • certainty of price
  • consumer sales
  • unilateral price determination
  • unfair terms
  • display of price
  • public policy
  • unequal bargaining relationship
  • unfair price
  • fundamental consumer rights
Date 2012-09-07
Availability unrestricted
Abstract
The purpose of this dissertation is to investigate the application of the common law rule prohibiting unilateral price determination in contracts of sale governed by the Consumer Protection Act. The unilateral determination of price has been a controversial issue for an extended period of time. This controversy is traced back to Roman law where different translations and interpretations are given to the texts dealing with the unilateral determination of price in a contract of sale. The majority of the Roman-Dutch writers preferred the view that regarded a contract granting a discretion to one of the parties to determine the price as void. Subsequently, this view was incorporated into South African law. During the 1990s the Supreme Court of Appeal questioned whether the rule should still form part of South African law. An overview of the case law indicates that the courts have been prepared to allow contractual price discretions provided such discretions refer to an objective external standard or reasonableness. There are also indications that the courts would imply that the discretion should be exercised reasonably, except in the case of clearly unfettered discretions. Recently, the Consumer Protection Act 68 of 2008 ("the CPA") has made substantial amendments to the law of sale in respect of contracts governed by the CPA. The dissertation investigates the influence of the CPA on the rule governing unilateral price determinations in such sales. It also investigates the consumer's fundamental rights to disclosure of information and fair, just and reasonable terms and conditions. Legal uncertainties and issues arising from the provisions of the CPA are identified. Finally, a comparative study with English law is undertaken which provides a comparative basis from which possible solutions are extracted and proposals made to address the uncertainties and issues emanating from the CPA.

Copyright 2012, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.

Please cite as follows:

Du Plessis, HM 2012, The unilateral determination of price in contracts of sale governed by the Consumer Protection Act 68 of 2008, LLM dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-07202012-131541 / >

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