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Seminar Session : The constitution and the Private law

Posted 23 August, 2009 – 22:37 by Emma Webber

The Constitution and The Private Law : The case Study of Unfair Contracts

Panel Discussion with : Edwin Cameron , Geoff Budlender, Tjakie Naude,  Rob Petersen, Jeremy Raizon (Chair)

The session is intended to introduce the issues that surround the topic of ‘the Constitution and the Private Law’. The broad theme deals with how the private law can be infused with constitutional values. Does the private law need to be changed to achieve fairer outcomes? If so, how should it be changed? We hope to draw out all the issues in this debate by using the case study of unfair contracts.

The question of how to deal with unfair contracts raises many relevant issues.

On the one hand there are considerations such as certainty and its importance for commercial practice. Further, the law should respect the autonomy of individuals and their ability to decide the terms of their contracts.

On the other hand, there are often massive disparities in bargaining power between the parties to the contract. Hence, the terms of the contract often favour one party to the detriment of the other. The law of contract affects the everyday lives of many of the most vulnerable members of society. Consequently, unfair terms can have a great impact on their lives.

If it is accepted that the law should be changed, what role can legislation play in dealing with the problem? Does the Consumer Protection Act give a nuanced solution? What are the limits of using the CPA and legislation generally to solve this sort of problem? Is it better to use incremental development through case law? What are the limits of relying on such development?

This session will be followed with a number of small concurrent sessions dealing with these issues using the case studies of land and competition law.