Abstract
The Validity of Exemption Clauses Excluding Liability for Death and Personal Injury in Commercial Contracts: A Comparative Analysis
South African contract law is governed by principles of freedom and sanctity of contract, allowing parties significant autonomy in forming agreements. Exemption clauses, which limit or exclude liability, are widely accepted in contracts, including those that limit liability for negligence. However, uncertainty remains regarding the validity of clauses that exclude liability for death and personal injury, as highlighted in the Johannesburg Country Club v Stott case.
This study examines the legislative gaps and the role of the Consumer Protection Act (CPA), which prohibits exemption clauses for gross negligence but only presumes clauses that limit liability for death and personal injury to be unfair. The research seeks to determine the effectiveness of the CPA in regulating such clauses (in comparison to legislation applicable in the United Kingdom), how South African courts have interpreted and developed the law in this area, and whether legislative amendments are needed to provide clarity. The findings aim to contribute to a more proactive legal framework for addressing exemption clauses that exclude liability for death and personal injury in South African contract law, especially in relation to consumer protection and public policy considerations.