Problems relating to the formation of online contracts: A South African perspective

Abstract

This article analyses the formation of online contracts, or standard-form contracts appearing in electronic form, in the South African context. The unique characteristics of online contracts — such as their length and ubiquity — render it more difficult to establish assent to these contracts than in the case of traditional standard-form contracts. In general, it is simply not reasonable to expect of consumers to study online contracts, because the cost of reading (in the form of time spent) outweighs the potential benefit. Furthermore, evidence shows that consumers do not perceive online contracts in the same manner as their paper-based equivalent. The article investigates whether contractual liability to online contracts can be established in terms of the reliance theory, and considers how and when notice of contractual terms should be given. It further argues that the unexpected terms doctrine potentially provides important protection to online consumers’ reasonable expectations, and may encourage suppliers to identify surprising terms and bring them to the attention of consumers. This approach requires of courts to recognise that it may be quite reasonable for consumers to decide not to read online contracts, and that consumers’ mistakes about surprising terms in online contracts must almost always be reasonable.