STATUS OF INDEMNITIES AND DISCLAIMERS
– PART 2 –
Sections 48 and 49 regulates disclaimers and indemnities and how these should be dealt with – The former requires of suppliers of goods or services only do any of the following if it is fair, reasonable and just AND terms that fall foul of the aforementioned standards must not be a precondition to enter into the contract i.e. when the consumer is to:
- waive any rights;
- assume any obligation;
- waive any liability of the supplier.
Even if your waiver or disclaimer is reasonable, just and fairly worded, you still need to do the following in terms of section 49:
- Draw any of the following to the attention of the consumer in plain language and in a conspicuous manner:
- limit in any way the risk or liability of the supplier or any other person;
- constitute an assumption of risk or liability by the consumer;
- impose an obligation on the consumer to indemnify the supplier or any other person for any cause;
- be an acknowledgement of any fact by the consumer.
- Spell out the ‘nature and potential effect of that risk’ of any of the following pertaining to the activity or premises and the consumer must acknowledge it by signing for it, i.e. if the risk:
- Is of an unusual character or nature;
- the presence of which the consumer could not reasonably be expected to be aware or notice;
- an ordinarily alert consumer could not reasonably be expected to notice or contemplate in the circumstances;
- could result in serious injury or death.
- The above must be done so that the consumer can comprehend it (49.5) and must be done at the earliest of when the contract is entered into, payment is made, the consumer participates in the activity or enters the premises in question (49.4).
It should be borne in mind that the body adjudicating a dispute will be required to consider (in terms of section 52) inter alia the following aspects so it is important to bear this in mind in training your sales force and in your dealings with the consumer:
- the fair value of the goods or services in question;
- the nature of the parties to that transaction or agreement, their relationship to each other and their relative capacity, education, experience, sophistication and bargaining position;
- those circumstances of the transaction or agreement that existed or were reasonably foreseeable at the time that the conduct or transaction occurred or agreement was made, irrespective of whether this Act was in force at that time;
- the conduct of the supplier and the consumer, respectively;
- whether there was any negotiation between the supplier and the consumer, and if so, the extent of that negotiation.
Disclaimer: This article is intended to provide a brief overview of legal matters pertaining to the travel and tourism industry and is not intended as legal advice. © Adv Louis Nel, BENCHMARK, March 2013.