Exemption Clauses

Question 1

Which Act limits the scope of exemption clauses?

Answer 1

Consumer Protection Act

Question 1

Define:

Answer 1

A prior agreement not to claim damages if another person’s conduct causes harm can exclude the recovery of damages.

Question 2

Latin name?

Answer 2

pactum de non petendo in anticipando (an agreement not to claim in advance)

Question 3

Who bears the onus of establishing the terms of the contract as well as establishing that it did everything reasonably necessary to bring the term to the attention the necessary person?

Answer 3

The defendant

Question 4

If there is no specific reference to negligence…

Answer 4

Courts must consider whether the words are extensive enough in their ordinary meaning to cover negligence on the part of the defendant.

Question 5

Case w/r/t exemption clause and the Constitution

Answer 5

Afrox Healthcare Bpk v Strydom (The plaintiff argued that the negligent conduct of the nurse had constituted a breach of contract by the defendant and instituted an action for damages suffered. The defendant relied on the exemption clause to avoid liability.)