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CONTRA PROFERENTEM IN SOUTH AFRICAN LAW Have you ever found yourself puzzled by the language of a contract, questioning its true meaning? If navigating through legal jargon has left you perplexed, you're not alone. Fortunately, South African law employs a crucial principle known as contra proferentem to assist in protecting the party that did not draft the contract containing the ambiguous clauses. Origin of the Contra proferentem Rule: The contra proferentem rule has a long history in South African contract law, rooted in principles that date back to Roman law. South African law, influenced by Roman-Dutch law, adopted the contra proferentem rule. It has been consistently applied in various legal contexts, particularly in cases involving standard form contracts and insurance policies. Understanding Contra Proferentem: Contra proferentem (a Latin term), which translates to "against the one who proffers," is a legal rule applied as a last resort when interpreting unclear or ambiguous terms in a contract. This rule dictates that if a contract's wording is so obscure that the parties' intentions cannot be discerned, the contract may be deemed void by reason of vagueness. Essentially, it ensures that any unclear language in a contract is construed in favour of the party that did not draft it. A good example of this principle is contained in the case of Cairns (Pty) Ltd v Playdon & Co Ltd 1948 (3) SA 99 (A) at 121-123, where Grotius (a renowned a Dutch jurist, philosopher, and scholar) is quoted as giving the reason why there is a rule that works against the proferens, ‘for he has himself to blame for not speaking more plainly’. Significance of Contra Proferentem: The rationale behind contra proferentem is rooted in fairness and clarity. It aims to ensure that the party drafting the contract, typically the seller or service provider, does not exploit their control over the wording and must use clear and unambiguous language in expressing the contract terms. By encouraging clear and concise drafting, this rule safeguards the other party, often the consumer, from hidden meanings or unforeseen limitations. The contra proferentem rule underscores the importance of drafting clear, unambiguous, and precise contract terms as the consequences of not doing so, can have an unmiserable outcome. Mitigating the Risk: For businesses that frequently use standard form contracts, it is advisable to regularly review and update these documents to ensure clarity and avoid potential disputes and for other once off agreements legal advice should be sought to ensure the drafting of clear and unambiguous contract terms that succinctly encapsulate the intention of the parties. Read the full article at www.thomsonwilks.co.za. If you need assistance with contracts, feel free to give us a call on 011 784 8984. #ContraProferentem #LegalTerms #ThomsonWilksInc #ThomsonWilksAttorneys

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