Spindrifter(Pty) Ltd v Lester Donovan (Pty) Ltd. (151/84) [1985] ZASCA 111; [1986] 1 All SA 384 (A) (27 September 1985)

Spindrifter(Pty) Ltd v Lester Donovan (Pty) Ltd. (151/84) [1985] ZASCA 111; [1986] 1 All SA 384 (A) (27 September 1985)

The Supreme Court of Appeal held that the appellant's error regarding the effect of clause 13 of the General Conditions was justus, as the respondent's agent, Mrs Katz, failed to draw the appellant's attention to the clause which allowed the respondent to change the exhibition dates and still claim payment. The negotiations and the contract form prominently featured the original exhibition dates, which formed the substratum of the agreement. The respondent's silence regarding the drastic effect of clause 13 constituted a misrepresentation, albeit innocent, and the appellant was not affected with constructive notice of the clause. The maxim 'caveat subscriptor' did not apply in these...

Citation
[1985] ZASCA 111
Parties
Appellant: Spindrifter (Pty) Ltd; Respondent: Lester Donovan (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 1985
Case Number
151/84
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal upheld; judgment of the trial court reversed.
Judges
Jansen, Hoexter, Van Heerden, Galgut, Nicholas
Legal Topics
Contractual Consensus, Justus Error, Misrepresentation, Summary Judgment, Costs Award
Commercial and Corporate Civil Procedure Contractual Consensus Justus Error Misrepresentation Summary Judgment Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Spindrifter (Pty) Ltd

Appellant

Lester Donovan (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether the appellant was bound by the contractual terms printed on the reverse side of the standard form contract, specifically clause 13, despite not having read them.
  2. 2 Whether the respondent's agent, Mrs Katz, was under a duty to draw the appellant's attention to the existence and effect of clause 13.
  3. 3 Whether the appellant's error regarding the contract terms was justus and sufficient to avoid liability for the exhibition held on different dates.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant's error regarding the effect of clause 13 of the General Conditions was justus, as the respondent's agent, Mrs Katz, failed to draw the appellant's attention to the clause which allowed the respondent to change the exhibition dates and still claim payment. The negotiations and the contract form prominently featured the original exhibition dates, which formed the substratum of the agreement. The respondent's silence regarding the drastic effect of clause 13 constituted a misrepresentation, albeit innocent, and the appellant was not affected with constructive notice of the clause. The maxim 'caveat subscriptor' did not apply in these...

Court Disposition

Appeal upheld; judgment of the trial court reversed.

Orders

  • Judgment for the defendant (appellant) with costs, including the costs of the summary judgment application and the wasted costs occasioned by the application for better discovery and postponement.