Lessons from America? a South African perspective on the draft Restatement of the Law, Consumer Contracts

The American Law Institute is drafting a Restatement of the Law, Consumer Contracts. It deals at a very broad level with various requirements for the formation, validity, and proof of consumer contracts and terms, and especially with how they are to be applied in modern commercial environments, characterised by the widespread use of standard terms in online contracting. At the heart of the Draft Restatement lies the notion that it reflects a ‘grand bargain’ or trade-off in American consumer contract law. While its rules follow a ‘permissive’ approach to assent, through granting businesses significant freedom to draft contract terms, the effect of these rules is balanced by greater ex post substantive control, through imposing mandatory restrictions on terms. The purpose of this paper is to view this central idea of the Draft Restatement, as well as some related features, from the perspective of South African consumer contract law. Aspects that enjoy attention include the treatment of standard contracts, rules on actual or deemed assent, various forms of substantive control, the relationship between common-law and statutory regulation of consumer contracts, restrictions on adducing evidence, and the most appropriate institutions for granting consumers effective relief