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 At own risk

An indemnity is an agreement in terms of which one party indemnifies another from liability for certain possible future events, liability and risk for such an event.

Eg: In a garage or a mechanics workshop a sign that reads “Cars are driven at the owner’s risk” or in a parking garage “Cars are stored at the owner’s sole risk.” These are general terms of indemnity that a service provider wants you to agree to, and can also often be found on quotations and invoices.

Today; we thought we would try and answer this question which was sent to us last week on Friday.

The question or rather more of a statement:

 “Over the last few years, I have read a number of articles that talk about the new Consumer Protection Act and how it provides protection for me, as a consumer. Yet, whenever I visit a shopping centre or Mall or sign a new in-store agreement, I always wonder whether these disclaimers, waivers and indemnities are really enforceable by the store concerned, and if so, how has my position as a consumer, been improved, if at all, by this piece of fairly recent legislation.”

The world of “the indemnity” and the law governing indemnities and contractual waivers is a complex one, and unfortunately not always as clear-cut as we would like to think, often leaving consumers like you and me wondering about their validity as did the person behind the above question.

Prior to the Consumer Protection Act, No 68 of 2008; which came into effect in April 2011 (“CPA”), indemnities and disclaimers that excluded sellers, owners and caretakers from all risk and responsibility, and in some cases even from their own gross negligence, abounded.

If the indemnity was well drafted, these were enforceable, although our courts have, over time, developed clearer guidelines for assessing the enforceability and scope of the indemnity provisions.

Nevertheless, a well-drafted indemnity could largely rid a person of liability if the terms of that indemnity or disclaimer were accepted by the other party; either expressly or by implication.

The CPA, even though it has not outlawed the indemnity, has gone a long way to regulating the enforceability and validity of indemnity and waiver provisions.

The CPA determines that it is unacceptable to require a consumer to waive any rights, assume any obligation, and 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.

A term of an agreement is unfair, unreasonable or unjust if it is excessively one-sided in favour of any person other than the consumer; or if terms are so adverse to the consumer as to be inequitable and the consumer relied upon a false, misleading or deceptive representation etc.

The CPA also restricts a supplier from making a transaction subject to any term or condition that limits or exempts the supplier from liability for any loss attributable to the gross negligence of the supplier or any person acting for or controlled by the supplier. 

These factors all effect indemnities and waivers and the law that governs them including our common law as the CPA is a piece of legislation and overrides the provisions of the common law.

However, the CPA does not outlaw the indemnity outright. It merely shackles it by limiting its scope and its impact on the consumer. Suppliers can still have disclaimers and indemnities and consumers can still be bound to them, provided these disclaimers and indemnities meet the requirements of the CPA.

Any provisions which in any way limit the risk or liability of the supplier, constitute an assumption of risk or liability by the consumer, impose an obligation on the consumer to indemnify the supplier for any cause, or is an acknowledgement of any fact by the consumer, must be brought to the attention of the consumer. The provision must be in plain and understandable language and the consumer must be given an adequate opportunity to receive and comprehend the provision fully.

What does remain clear in our current law, is that despite the CPA, the world of the indemnity is still thorny and requires careful treading.

It remains advisable that should you have concerns about your rights as a consumer or whether your disclaimers can protect your business, you seek specialist legal advice to ensure your rights are protected and your disclaimers and waivers are legally enforceable.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 41 years’ experience in the legal field. 22 years as a practising attorney and conveyancer; and 19 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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