Article

Non-variation clauses

Author: Jacques du Plessis

ISSN: 1996-2177
Affiliations: Distinguished Professor, Faculty of Law, Stellenbosch University
Source: South African Law Journal, Volume 141 Issue 4, p. 804-838
https://doi.org/10.47348/SALJ/v141/i4a8

Abstract

The traditional approach in South African law is to give effect to non-variation clauses, subject to limited exceptions. While recent developments in local and foreign law suggest that there is no clear justification for deviating from this approach, they also indicate that the exceptions may benefit from further refinement. First, it is too readily assumed that estoppel has no role, or an exceedingly limited role, to play in protecting the reliance of a party on the binding nature of an oral modification. It is argued that there is room for a more nuanced approach towards applying the requirements of estoppel, thereby making it a more effective tool to counteract egregious cases of contradictory behaviour. Secondly, greater clarity is required on the application of the rule that a term or its enforcement may not be against public policy. It is argued, taking the lead from Beadica 231 CC v Trustees, Oregon Trust, that certain factors may guide courts when applying the public policy rule to non-variation clauses. Ultimately, the bar that has to be crossed for not enforcing these clauses will remain high, but hopefully it can be lowered sufficiently to ensure more just outcomes.