With the advent of so many forms of digital communication, more and more business dealings take place without persons having any form of personal contact. Online purchases take place every day and, in many instances, the mere placing of an online order could mean acceptance of the seller’s general terms and conditions for doing business that may never be read.
Who has for example not ordered something from Takealot? Now, how many of you have read their terms and conditions? This is a link to their terms and conditions: Takelot T&C’s. If you have purchased something from them, then their terms have been accepted by you. Did you know that there are several provisions which exclude liability for certain acts of negligence and only liability for gross negligence is accepted? Did you know that it is extremely difficult, if not nearly impossible, to prove gross negligence?
As recently as December last year the public became aware of data breaches with the unauthorised release of certain banking customers’ personal information and details. If your personal information and details became public through mistake, error or negligence, exclusionary clause 15.12 of the Takealot’s terms and conditions provide
“Whilst we will do all things reasonably necessary to protect your rights of privacy, we cannot guarantee or accept any liability whatsoever for unauthorised or unlawful disclosures of your personal information, whilst in our possession, made by third parties who are not subject to our control, unless such disclosure is as a result of our gross negligence”
which excludes their liability. You will also find similar provisions on other online service providers.
It must be noted that the majority of online purchases would fall squarely within the provisions of Section 48(1) of the Consumer Protection Act (CPA) which precludes a supplier from offering to supply, supply, or enter into an agreement to supply, goods or services on terms that are unfair, unreasonable, or unjust or require a consumer or other person to whom goods or services are supplied at the direction of the consumer to waive any liability of the supplier, on terms that are unfair, unreasonable or unjust or impose any such terms as a condition of entering into a transaction. Section 51 of the CPA prohibits an exemption of a supplier of goods or services from liability for any loss directly or indirectly attributable to gross negligence of the supplier or any person acting for or controlled by the supplier. For now, it would seem that contracting out of ordinary negligence is permissible.
Please note that I am not in any way whatsoever suggesting that online suppliers have done anything unlawful or against public policy in their terms and conditions and the numerous exclusionary provisions. Persons using their and other similar website platforms to order and pay for goods must be cautious and aware that their common law rights have been severely limited and curtailed by such terms and conditions. Please read them and make your own determination if the convenience of online service providers is worth the risks you will be compelled to accept.
If unsure please do not hesitate to contact us, if you are an online retailer with a platform, we can assist you with drafting your online terms and conditions for doing business.
Barrisford Petersen
barrisford@bbplaw.attorney
Managing Director
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