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Purposive interpretation
First, it seems unrealistic to engage in a process of interpretation that is divorced from the context in which the parties find themselves. Van Huyssteen162 argues that ―the general purpose of interpretation of a contract is to ascertain the common intention of the contractants, as expressed by the words or conduct (which, in the context of written agreements and the parol evidence rule, would normally be their constructive intention in terms of the application of the reasonable reliance as a contractual basis), by ascertaining the meaning of the language used,163 Simply put, what they intend their contract to mean?164
Thirion J in the Cargo Africa case states that meaning given to an expression always depends upon the construction of a the particular contract in which it is used, viewed in light of the circumstances pertaining to it. 165 Subsequent to that courts‘ have expanded this meaning by holding that ―a contractual provision must be interpreted in its context, having regard to the relevant circumstances known to the parties at the time of entering into the contract to give it a commercially sensible meaning.‖166
Ironically, Smallberger JA in Public Carriers Association v Toll Road Concessionaires (Pty) Ltd167 states that ―the notion of what is known as a ‗purposive construction‘ is not entirely alien to our law‖, yet preferred the literal interpretation as the one firmly established in our law. This bizarre view should be contrasted with the argument that words cannot be cut out, pasted on a clean sheet of paper and then considered with a view to determining their meaning in abstract and out of context.168
Decades ago Lord Steyn, a judge in the House of Lords in England once said ‗[t]he law must respect the reasonable expectations of the contracting parties‘.169 Indeed, in the interpretation of statutes there has been a paradigm shift from a literalist to a purposive approach.170 The lacunae in South African law on the reluctance to apply purposive interpretation was subsequently filled by Grosskopf JA in Venter v Credit Guarantee Insurance Corp of Africa Ltd171when he advocated that: ―[i]nsofar as the words used in the undertaking are capable of bearing different meanings, a ‗purposive construction‘ may be applied.‖
Strategies of Interpretation
The rules of interpretation can be divided into three classes: those which are applied as a matter of course (primary rules); those applied as and when the facts demand (secondary rules); and those which are applied as a last resort, without any pretence and attempting to find the real intention of the parties.198It is advised that one way to conceive the interpretative process one has to understand the sequential application of the hierarchical series of rules to resolve the contractual ambiguity.
Primary rules
Courts usually start by resorting to the primary rules, as they are referred. The first being to determine the intention of the parties sought from the words used by them to express what they want or expect from the contract. This is also called the golden rule of interpretation because it only accentuates the literalist approach which purposive construction seeks to cure its shortcomings. As a matter of course, the second rule requires that the words are given their ordinary grammatical meaning199, as they appear from the rules of grammar,200 dictionaries201 and even previous judicial decisions.202
The third step probably under this rule and the most important one is that courts consider the contextual setting to properly construe the contract in whole. There are a lot of cases, which emphasizes this point of context.203 Despite the words used in the contract, the courts have to place themselves in the same factual matrix the parties were at the time of contracting. Malan AJA in Engelbrecht v Senwes Ltd204puts the matter more succinctly that: ―[t]he intention of the parties is ascertained from the language used in a contextual setting in the light of admissible evidence…
‖The first or golden rule is perfectly suitable for the conservative legal culture of adjudication in South Africa where the contract law‘s foundations of the classical liberal theory have been naturalized in interpretation with the adjective of value-neutral. Jansen JA in SassoonConfirming & Acceptance Co (Pty) Ltd v Barclays National Bank Ltd205 warns that the first step in construing the agreement is to determine the ordinary grammatical meaning of the word, but bearing in mind, that few words have a single meaning only. He cautions that the meaning that a particular word bears in a particular contract must be made to appear from the contract as a whole, its interaction with the other words and provisions in the contract and circumstances of the contract‘s setting.
CHAPTER 1 THE INCORPORATION AND DEVELOPMENT OF EXEMPTION CLAUSES WITHIN STANDARD FORM CONTRACTS
1. Background:
2. Problem Statement
3. Objectives
4. Hypothesis
5. Methodology
6. Delimitations
7. Outline
CHAPTER 2 PRE-WELFARE DISPENSATION IN CONTRACTUAL PRINCIPLES OF INTERPRETATIONAND THE STRUGGLE IN TRANSITION
2.1 Development of the rules of interpretation in contract law .
2.2 The nature of contractual liability .
2.3 Different English common law grounds for policing exemption clauses
2.4 Incorporation by Notice .
2.5. Public policy
2.6 Good faith
CHAPTER 3 EXPOSITION FROM CASE LAW
3.1 Nature of exemption clauses in standard form contracts
3.2 Case law
3.3 Problems of language as a source of interpretation
3.4 Background and surrounding circumstances-interpretation of parol evidence rule
3.5 Interpretation to prevent repudiation
3.6 Other factors for interpretation
3.8 Which route for the courts on exemptions claims based on breach of contract or delict?
3.9 Distinction between exclusion clauses and limitation clauses
CHAPTER 4 CRITICAL DISSECTION OF THE CONSUMER PROTECTION ACT 68 OF 2008
4.1 Objectives of the Act
4.2 Provisions dealing with warranties in sale contracts
4.3 Incorporation wrangle
4.4 Strict liability
4.5 The constitutional imperatives and contractual relations
4.6 Emerging consumer jurisprudence
4.7 Concluding remarks
CHAPTER 5 COMPARISONS WITH FOREIGN LEGAL REGIME AND DEDUCTIONS
5.1 Application of foreign law in South Africa .
5.2 European Union law
5.4 English Law
5.5 Germany
5.6 United States of America (US)
CHAPTER 6 CONCLUSION AND RECOMMENDATIONS
BIBLIOGRAPHY
1. BOOKS
2. STATUTES
3. TABLE OF CASES .
4. JOURNAL ARTICLES
5. WEB PAGES
6. OTHER AUTHORITIES AND SOURCES
GET THE COMPLETE PROJECT
PROBLEMS REGARDING EXEMPTION CLAUSES IN CONSUMER CONTRACTS: THE SEARCH FOR EQUITABLE JURISPRUDENCE IN THE SOUTH AFRICAN CONSTITUTIONAL REALM
