scholarly journals THE INFLUENCE OF PLAIN LANGUAGE AND STRUCTURE ON THE READABILITY OF CONTRACTS

Obiter ◽  
2021 ◽  
Vol 31 (3) ◽  
Author(s):  
Stephen Newman
Keyword(s):  
South African ◽  
Standard Form ◽  
Plain Language ◽  
Distribution Of Wealth ◽  
Freedom Of Contract ◽  
Ideal Situation ◽  
Commercial World ◽  
Degree Of Certainty ◽  
Form Contract ◽  
High Degree

Contracts form an integral part of our existence, both in our work and personal environments. They are an unavoidable consequence of our participation in the commercial world. As such they are important since they will determine the distribution of wealth and power in society. South African law has always stuck religiously to the principles of freedom of contract and pacta sunt servanda. That is to say, everyone should have the utmost freedom to enter into contracts with whomever they please and once that agreement has been struck it must be adhered to. Through the application of these principles the law of contract obtained a high degree of certainty which is important for the parties to a contract because they know what their rights and obligations are. Furthermore they are safe in theknowledge that the contract is enforceable. While this may be an ideal situation we do not live in an ideal world. A large percentage of our society has had little contractual experience and even those that have are still regularly involved in contacts over which they have no control. Whilst consumers supposedly have freedom to contract, they very often have no leverage to negotiate the terms of the contract since a business will often make use of a standard form contract. As a consequence of this lack of bargaining power, consumers entering into contracts may not bother to read the terms since they are bound by them no matter what. Another reason is that they may be drafted and set out in such a way as to dissuade consumers from reading them. 

Exemption and exegesis: Judicial interpretation of exemption clauses in England, Australia, and India

Semiotica ◽  
2016 ◽  
Vol 2016 (209) ◽  
pp. 77-97
Author(s):  
Tony Blackshield ◽  
Rosemary Huisman
Keyword(s):  
Standard Form ◽  
Legal Liability ◽  
Discourse Communities ◽  
Judicial Interpretation ◽  
Freedom Of Contract ◽  
Judicial Decisions ◽  
Creative Solutions ◽  
Legal Effect ◽  
Judicial Discourse ◽  
Form Contract

AbstractA feature of the modern consumer economy is the so-called “standard form contract,” printed in advance to establish the terms on which a corporate supplier deals with its customers. Typically these terms include an “exemption clause,” seeking to limit the supplier’s liability for loss or damage, and often to exclude legal liability altogether. Sometimes such clauses are given effect according to their apparent intention, but in other cases judges may endeavor to avoid that result – either by denying the clause any legal effect whatsoever, or by reading it so as not to apply to the precise kind of liability that has in fact arisen. We illustrate these varied responses by reference to judicial decisions in England, Australia, and India. The analysis suggests different expectations within these different judicial discourse communities: in England, from 1980 onwards, the renewed ideological emphasis on freedom of contract led judges to retreat from the creative solutions of earlier decades, returning to an emphasis on the actual words of such clauses; in Australia, in contrast, judges declined to take part in such a retreat; in India, a prevailing insistence on the need to interpret contracts strictly according to their literal terms has failed to prevent occasional attempts at ingenious interpretive solutions.

A Statistical Predictive Model to Prioritize Site Selection for Stress Corrosion Cracking Direct Assessment

2006 ◽  
Author(s):  
Anthony Merle ◽  
P. F. Ehlers
Keyword(s):  
Stress Corrosion ◽  
Stress Corrosion Cracking ◽  
Environmental Parameters ◽  
Predictive Modelling ◽  
Corrosion Cracking ◽  
Direct Assessment ◽  
Degree Of Certainty ◽  
Regression Techniques ◽  
Selection For ◽  
High Degree

Pipeline stress-corrosion cracking (SCC) is an ongoing integrity concern for pipeline operators. A number of different strategies are currently employed to locate and mitigate SCC. Ultrasonic in-line inspection tools have proven capable of locating SCC, but reliability of these tools in gas pipelines remains in question. Rotating hydrotest programs are effectively employed by some companies but may not provide useful information as to the location of SCC along the pipeline. NACE Standard RP0204-2004 (SCC Direct Assessment Methodology) outlines factors to consider and methodologies to employ to predict where SCC is likely to occur, but even this document acknowledges that there are no well-established methods for predicting the presence of SCC with a high degree of certainty. Predictive modelling attempts to date have focused on establishing quantitative relationships between environmental factors and SCC formation and growth; these models have achieved varying degrees of success. A statistical approach to SCC predictive modelling has been developed. In contrast to previous models that attempted to determine direct correlations between environmental parameters and SCC, the new model statistically analyzed data from dig sites where SCC was and was not found. Regression techniques were used to create a multi-variable logistic regression model. The model was applied to the entire pipeline and verification digs were performed. The dig results indicated that the model was able to predict locations of SCC along the pipeline.

Bona fides and ubuntu – A response to Dale Hutchison

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 85-106
Author(s):  
J Barnard-Naudé
Keyword(s):  
South African ◽  
Common Law ◽  
Standard Form ◽  
Contract Law ◽  
Law School ◽  
Point Of View ◽  
Long Time ◽  
School Faculty ◽  
The Common ◽  
Faculty Meeting

This paper is a response to Dale Hutchison’s recent arguments about the role of fairness in contract law after the Constitution. From the point of view of transformative constitutionalism, the paper argues that the fairness ‘debate’ in the South African law of contract should be approached as what it so patently is, namely, as evidence of a deep ideological conflict that has existed in our law of contract for a very long time, and that this debate now exists within the context of a larger debate about the appropriate transformative reach of the Constitution. The argument takes the form of two ‘dangerous supplements’ to Hutchison’s discourse. The first of these supplements contends that indeterminacy is a symptom of the common law itself, rather than a result of contract law’s contact with the Constitution. The second dangerous supplement suggests a responsible judicial engagement with bona fides and ubuntu, one that can exploit the strengths of both the common law and the Constitution and that understands good faith and ubuntu to be ‘inter-linking’ constitutional values that should be enlisted in unison or at least in resonance when it comes to the question of fairness in our contemporary law of contract. In conclusion, I offer a reading of Hutchison’s own politics of contract law and contend that his is an altruistic politics committed to the standard form. I contend that this politics of contract law is consistent with a transformative understanding of the post-apartheid legal order. ‘Law, like every other cultural institution, is a place where we tell one another stories about our relationships with ourselves, one another, and authority. In this, law is no different from the Boston Globe, the CBS evening news, Mother Jones, or a law school faculty meeting. When we tell one another stories, we use languages and themes that different pieces of the culture make available to us, and that limit the stories we can tell. Since our stories influence how we imagine, as well as how we describe, our relationships, our stories also limit who we can be’.

scholarly journals Doing Well By Doing Good In The Community: Evidence From Some South African Small Businesses

2015 ◽  
Vol 32 (1) ◽  
pp. 227
Author(s):  
D. Y. Dzansi
Keyword(s):  
South African ◽  
Empirical Research ◽  
Economic Performance ◽  
Small Businesses ◽  
Economic Benefits ◽  
Business Practice ◽  
Policy Makers ◽  
High Degree ◽  
African Setting ◽  
Do So

<p>Researchers and policy makers worldwide are convinced that only clear empirical evidence of the economic benefits of business social responsibility (BSR), rather than normative assertions, can motivate small businesses enough to accept and adopt it as an integral business practice. Unfortunately, empirical research so far has yielded mixed results, such that smaller businesses are right to be skeptical about adopting BSR. This paper reports the findings of empirical research on patterns of BSR engagement practices and growth in firms’ sales and gross profit among small and micro enterprises (SMMEs) in a South African setting. This is to determine how a small firm’s economic performance varies (if at all) with the degree of its BSR performance and the kind of BSR activity it engages in. The results suggest a high degree of BSR activity among firms with substantial portions of profit dedicated to BSR. However, contrary to expectations, very weak (minor) link was found between BSR performance and economic performance among the sample of small businesses on some but not all dimensions of BSR considered in the study. Nonetheless, it is recommended that managers and owners of small businesses be encouraged to adopt and practice BSR. Even if they do not do so for economic reasons, they would be right to do so to ‘atone’ for the widely acknowledged detrimental impacts of business on society. </p>

Scattering of journals cited in legal theses and dissertations

2021 ◽  
pp. 096100062110367
Author(s):  
Siviwe Bangani ◽  
Michiel Moll
Keyword(s):  
South African ◽  
Law School ◽  
Law Students ◽  
Law Schools ◽  
The Core ◽  
Bradford’S Law ◽  
Master's Thesis ◽  
Doctoral Dissertations ◽  
High Degree ◽  
Theses And Dissertations

The study employed bibliometrics methods to analyse the scattering of 596 journals cited in legal master’s theses and doctoral dissertations in three South African law schools from 2014 to 2018. In addition, the study included an analysis of the extent of citation of different sources and examined the effect of use of non-legal journals by law students. It was found that students used 449.2 documents on average in writing a doctoral dissertation and 110.9 references per master’s thesis. Journals received more citations than any other document formats although 16 master’s theses were completed without citing a single journal. Generally, the journals cited in legal theses and dissertations conform to Bradford’s Law but they differ in their level of conformity by law school. There was a high degree of overlaps between Zone 1 journals in the three law schools. All journals in the core lists were available in all the law schools which was attributed to the strength of collections in these schools. The results support the application of bibliometric analyses to legal master’s theses and doctoral dissertations to make collection development decisions. In making those decisions, however, law librarians would have to look beyond the Zone 1 journals of their own institution for wider access. These results also serve as a caution to law librarians to look beyond the traditional law journals in de/selecting journals, as some of the non-legal journals in this study made it to the core list of cited periodicals. Furthermore, this study points to the strength of library collections in the top law school libraries in the country.

contract law principles may state a general rule, very often, the law for the purposes of employment contracts may differ. The classical model of contractual relations outlined above works on the basis of freedom of contract. It assumes the contract arena is a level playing field on which all participants are equal in terms of bargaining power. But this is patently not the case. Many of the rules developed in the 20th century recognise that individual consumers do not have the same bargaining strength as a multinational company. The consumer requires protection, especially in the light of the widespread use by business of the ‘standard form’ contract. Some rules towards this end have been developed at common law but, to a large extent, common law development has been hindered by the conflict between the needs of consumers and the principle of freedom of contract espoused in the classical theory. Even in the field of purely commercial contracts, where the classical theory appears to have its strongest hold, there are exceptions. What must be appreciated is that traders operate on an international level and the ancient law merchant had started to develop before the 19th century classical theory took hold. In order to cater for the needs of the trading community, some of the classical rules were modified to take account of established trading practice. Thus, a number of the rules gathered together under the doctrine of consideration are modified to take account of practices established many

1995 ◽  
pp. 56-56
Keyword(s):  
Classical Theory ◽  
Common Law ◽  
Classical Model ◽  
General Rule ◽  
Employment Contracts ◽  
Freedom Of Contract ◽  
Playing Field ◽  
Ancient Law ◽  
Form Contract ◽  
Law Merchant

scholarly journals Quantum-Like Interdependence Theory Advances Autonomous Human–Machine Teams (A-HMTs)

Entropy ◽  
2020 ◽  
Vol 22 (11) ◽  
pp. 1227
Author(s):  
William F. Lawless
Keyword(s):  
Autonomous Systems ◽  
Quantum Decoherence ◽  
Multi Agent Systems ◽  
Scale Free ◽  
Weapon Systems ◽  
Interdependence Theory ◽  
Human Autonomy ◽  
Degree Of Certainty ◽  
Human Operators ◽  
High Degree

As humanity grapples with the concept of autonomy for human–machine teams (A-HMTs), unresolved is the necessity for the control of autonomy that instills trust. For non-autonomous systems in states with a high degree of certainty, rational approaches exist to solve, model or control stable interactions; e.g., game theory, scale-free network theory, multi-agent systems, drone swarms. As an example, guided by artificial intelligence (AI, including machine learning, ML) or by human operators, swarms of drones have made spectacular gains in applications too numerous to list (e.g., crop management; mapping, surveillance and fire-fighting systems; weapon systems). But under states of uncertainty or where conflict exists, rational models fail, exactly where interdependence theory thrives. Large, coupled physical or information systems can also experience synergism or dysergism from interdependence. Synergistically, the best human teams are not only highly interdependent, but they also exploit interdependence to reduce uncertainty, the focus of this work-in-progress and roadmap. We have long argued that interdependence is fundamental to human autonomy in teams. But for A-HMTs, no mathematics exists to build from rational theory or social science for their design nor safe or effective operation, a severe weakness. Compared to the rational and traditional social theory, we hope to advance interdependence theory first by mapping similarities between quantum theory and our prior findings; e.g., to maintain interdependence, we previously established that boundaries reduce dysergic effects to allow teams to function (akin to blocking interference to prevent quantum decoherence). Second, we extend our prior findings with case studies to predict with interdependence theory that as uncertainty increases in non-factorable situations for humans, the duality in two-sided beliefs serves debaters who explore alternatives with tradeoffs in the search for the best path going forward. Third, applied to autonomous teams, we conclude that a machine in an A-HMT must be able to express itself to its human teammates in causal language however imperfectly.

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