A well known and established principle of our Law is summarized by the Latin maxim caveat subscriptor which translated into English, means “Let the signor beware.” Simply put this means that when a party to a written contract signs it, he is presumed to be aware of all the terms and conditions of the contract, and is bound thereby. It will not, in general terms, avail him to subsequently protest that he was not aware of the offending term or that he signed the agreement without understanding the meaning and implication of the offending term, or that the inclusion of the offending term is grossly unfair to him.

Many cases dealing with this principle have come before our Courts and, for the most part, our Courts have applied this principle strictly and have not come to the aid of the Party seeking not to be held bound by the offending terms and conditions of the Contract. One such case which did come to our Courts dealt with this principle. The facts are as follows:

  1. Mr A checked himself into a private hospital in order to undergo surgery for a medical problem bedeviling him. He presented himself at the reception office and was presented with a document which he was required to sign before being shown to his ward. This document was the contract governing his stay in the hospital and set out the charges he would have to pay for his stay in the hospital. One such clause provided that should any mishap befall Mr A whilst in the hospital causing him to suffer any physical harm, the hospital would not be liable to compensate him for the harm befalling him, irrespective as to how the mishap occurred. It provided that if the mishap was caused by any act on the part of anyone employed by the Hospital, no liability would attach to the Hospital to compensate him.
  2. Upon being presented this document, Mr A glanced at it, signed it, and was shown to his ward.
  3. During Mr A's stay in hospital and after the surgery was performed on him, and whilst recuperating, he needed to go to the bathroom. At this stage he was still under sedation and the nurse advised him that it was in order to walk unaided to the bathroom. On route he had a fall and sustained serious injuries.
  4. After his discharge from hospital, Mr A instituted an action against the Hospital in the Transvaal Provincial Division in which he claimed compensation from the Hospital alleging it to be liable on the grounds of the injury having been caused by the negligence of the Nurse. The negligence of the nurse was not denied by the hospital, but it asserted it was not liable by virtue of the existence of the clause in the written contract rendering it not liable for any injury sustained while Mr A was in the hospital irrespective as to how the injury was caused.
  5. Mr A claimed to be unaware of the existence of this clause, he did not spot it when reading the document presented to him, and stated that had he been aware of it, or had his attention been drawn to it, he would not have signed the contract with the inclusion of that clause. In support of his contentions he led evidence, and it was not disputed by the Hospital, that when presented with this contract the attending admissions Clerk did not draw its existence in the contract to his attention.
  6. The Learned Presiding Judge held that, whilst acknowledging the existence in our law of caveat subscriptor, the offending clause and its implications were somewhat harsh and that there existed a duty on the Hospital to ensure that its admission Clerk specifically drew the existence of this clause to the Patient. Because it failed to do so he held the Hospital liable to compensate Mr A for his injuries.
  7. However this did not end the matter. The Hospital took this decision on Appeal to the Supreme Court of Appeals which delivered a judgment holding that there was no duty on the part of the Hospital to ensure that its admission Clerk specifically drew the existence of this clause to the Patient. There was, it held, a duty on the part of Mr A to read the Contract, understand it, and to sign it only once he agreed to be bound by the terms and conditions contained in it. If Mr A did not read the contact through properly and carefully he should have refused to sign it. Once he affixed his signature to the document, he was held to be bound by its terms and conditions. The Court once more entrenched the principle of caveat subscriptor .
  8. The authors of this publication observe that had Mr A informed the Admissions Clerk his unwillingness to sign the contract as presented to him because of the inclusion of this clause, it would have been most unlikely that the Admissions Clerk would have been vested with the authority to delete it from the Contract. Moreover, it is observed that being understandably anxious about the surgery Mr A was to undergo, it is unlikely that he contracted with the hospital on an equal footing with it in that on protesting his dissatisfaction with that clause, he would have most likely been informed that if he refused to sign the contract in the form presented to him, then he would not have been admitted to the Hospital for the surgery he had to undergo. However this point was not dealt with by the Supreme Court of Appeals.

In our experience many Clients have presented us with contracts which they have signed which contained clauses offensive to them usually in small print claiming to be unaware of their existence. We have had to advise them of caveat subscriptor . We have pointed out that had they consulted us prior to concluding the offending agreement we would have explained the import and meaning of the offending clause and negotiated its exclusion from the contract. However this avenue no longer availed them once they had signed the agreement. The law did not allow us to close the stable door after the horse has bolted because of caveat subscriptor.

Now there are circumstances in which caveat subscriptor will not apply but these will be dealt with in future articles. For the purposes of this article it is important for you to be aware that caveat subscriptor is applied strictly by our Courts. You are implored to read the small print before signing a contract placed before you. If you are unhappy with the existence of a clause attempt to negotiate its exclusion from the contract. If this fails seek legal advice, it is the most prudent course of action to adopt and if you still cannot negotiate the exclusion of the offending term rather do not become bound by the contract. You may regret it!



Johannesburg - 13th June 2005

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