Recently in the doctrine of caveat subscriptor has increasing pressure from judicial decisions influenced by public policy considerations, in particular, the case of the Brink versus Humphreys and Jewell (Pty) Ltd 2005 (2) SA 419 (SCA), which I have critically reviewed previously.

Fortunately, the recent judgement Hartley vs. Pyramid Freight (Pty) Ltd [ 2006] SCA 100 (RSA) seems to have gone against the trend. While each case is obviously decided on the merits of the particular facts before the court, the fact that Cloete J. A. the same judge of that delivered the Supreme Court of Appeal judgement in the Brink judgement also delivered this judgement is a positive sign.

The caveat subscriptor doctrine literally means ” signer beware” , holds that the signer of a contract is taken to have read and accepted all the terms and conditions of the contract, by virtue of his having signed the document.

In this particular case what appears to be an elderly attorney and his wife signed the standard terms and conditions of a courier company before using their services to courier travellers cheques overseas. The travellers cheques were lost and the courier company denied liability in terms of their standard terms and conditions. Hartley’s legal team tried to argue a jus error, and that the courier company ought to know that the parties were unaware of the exclusionary clauses. Fortunately, the caveat subscriptor doctrine was upheld by the court. If the court had of continued down the road that it had followed in the Brink case it would have been a further erosion of contractual certainty, that is vital for commercial and other dealings.

The bottom line is any party to a contract must read the fine print!