Abstract

The conflict between the objectives of the Consumer Protection Act 68 of 2008 – to protect consumers and ensure accessible and transparent redress – and the purpose of the parol evidence rule – to exclude extrinsic evidence and observe the maxim pact servanda sunt ‒ is evident and forms the basis of this article. The purpose of consumer protection legislation is to balance the rights of consumers and suppliers, to protect the interests of consumers and to ensure efficient redress for consumers who have been wronged. The parol evidence rule, which is still in effect in South Africa, prohibits extrinsic evidence in a dispute to interpret a written agreement between parties to ensure certainty on the terms and conditions agreed to in writing. In practice, the parol evidence rule can disadvantage consumers who enter into standard-form contracts, as they normally are in an inferior bargaining position and cannot negotiate the individual terms and conditions of consumer agreements. It is obvious that the strict enforcement of the parol evidence rule in consumer agreements could lead to unjust results in consumer disputes. The provisions of the Consumer Protection Act 68 of 2008 are discussed to establish the extent of the limitation of the parol evidence rule therein. Then, the Consumer Rights Act, 2015 in the United Kingdom is considered to establish the tendency to limit the application of the rule in foreign consumer legislation, and to compare that to the position in South Africa. This article discusses whether the restriction or limitation of the parol evidence rule in the Consumer Protection Act is efficient in reaching the aims and objectives of the Act.

Highlights

  • The conflict between the objectives of the Consumer Protection Act 68 of 2008 (CPA) – to protect consumers and ensure accessible and transparent redress – and the purpose of the parol evidence rule – to exclude extrinsic evidence and observe the maxim pact servanda sunt ‒ is evident and forms the basis of this article.In general, the purpose of consumer protection legislation is to strike a balance between the rights and perceived vulnerabilities of the consumer on the one hand, and the rights and obligations of the supplier of goods or services on the other.1 The objectives of the Consumer Protection Act of 2008 (CPA) are to fulfil the rights of historically disadvantaged persons, to promote their full participation as consumers, and to protect the interests of consumers

  • The parol evidence rule can disadvantage consumers who enter into standard-form contracts, as they normally are in an inferior bargaining position and cannot negotiate the individual terms and conditions of consumer agreements

  • Compensate the consumer who is in an inferior bargaining position by allowing extrinsic evidence in prescribed circumstances

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Summary

Introduction

The conflict between the objectives of the Consumer Protection Act 68 of 2008 (CPA) – to protect consumers and ensure accessible and transparent redress – and the purpose of the parol evidence rule – to exclude extrinsic evidence and observe the maxim pact servanda sunt ‒ is evident and forms the basis of this article. The strict application of the parol evidence rule can lead to unjust results in disputes where the written document does not reflect the true intention of the parties.8 It can impede efficient redress and transparent access to justice for consumers, thereby detracting from the objectives stated in the preamble and section 3 of the CPA. The article will conclude with a discussion of the desirability of the inclusion or exclusion of parol evidence in consumer agreements under the CPA, and recommend improvements on the current position to ensure efficient redress and access to justice for consumers as envisaged by the legislature. A lengthy discussion of the historical development of the parol evidence rule falls outside the scope of this article, as do the components, merits and correct interpretation of the rule in the South African common law of contract

Parol evidence under the common law
Standard-form contracts
Introduction and background
Parol evidence under the CPA
Concluding remarks on parol evidence in the CPA
Parol evidence under the CRA
Concluding remarks on parol evidence in the CRA
Conclusion
Literature
Full Text
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