Hartley v Pyramid Freight (Pty) Ltd t/a Sun Couriers (498/05) [2006] ZASCA 101; 2007 (2) SA 599 (SCA) (14 September 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 101
|

|

Hartley v Pyramid Freight (Pty) Ltd t/a Sun Couriers (498/05) [2006] ZASCA 101; 2007 (2) SA 599 (SCA) (14 September 2006)

Links to summary

Case number : 498/05
Reportable
In
the matter between :
C
R H HARTLEY APPELLANT
and
PYRAMID FREIGHT (PTY) LTD t/a SUN COURIERS
RESPONDENT
CORAM : MTHIYANE, NUGENT, CLOETE JJA, MALAN
et
CACHALIA
AJJA
HEARD : 1 SEPTEMBER 2006
DELIVERED : 14 SEPTEMBER 2006
Summary: Contract:
caveat subscriptor
; party
to a contract allowing his wife to
sign knowing that the contract would contain terms
and conditions: thereafter
contending
that the other party’s representative knew or ought to have known
that
he was unaware of the ambit of exclusionary clauses; unilateral
mistake
not
excusable.
Neutral citation: This judgment may be referred to as
Hartley v Pyramid Freight
(Pty)
Ltd [2006] SCA 100 (RSA).
___________________________________________________________________
JUDGMENT
CLOETE JA
/
CLOETE JA:
[1] On 12 October 2001 the appellant, Mr Hartley, and
his wife went to the Polokwane branch of the respondent, Pyramid
Freight (Pty)
Ltd, which traded as Sun Couriers. There the appellant
countersigned American Express travellers’ cheques which had a face
value
of US $16 000 whilst his wife, with some assistance from an
employee of the respondent, Mrs Barnard, completed and signed the
respondent’s
standard form document entitled ‘dispatch note’.
It was common cause that the dispatch note constituted a contract
between the
appellant and the respondent in terms of which the
respondent undertook for reward to convey the travellers’ cheques
from Polokwane
to an address in the Jersey Islands.
[2] To the left of the place for signature, where the
appellant’s wife in fact signed the dispatch note, the following
appeared
in red ink:
‘
This shipment is accepted by Sun Couriers subject to
the conditions of carriage printed on the reverse of the copies
hereof, which
conditions the Sender acknowledges by signing this
shipment, to have read and understood. In particular, your attention
is drawn
to Sun Couriers maximum liability of R50,00 per shipment for
loss or damage.
If
you wish Sun Couriers to accept a higher liability the value of this
shipment must be declared in the space provided. Refer the
published
tariff for conditions and exclusions.’
The conditions of carriage printed on the reverse
included the following:
‘
8.2 Subject
to what is stated below, the
Courier
will accept the
responsibility up to the value of the goods declared on the
Dispatch
Document
. If no value is declared, the maximum responsibility
that will be accepted is R50,00.
The maximum compensation in respect of any single
shipment of goods shall be R100 000.
8.7 The
Courier
accepts no responsibility in
respect of and will not pay compensation in the event of loss or
damage to jewellery, precious stones
and metals, negotiable
instruments, or any article exceeding R3 000 of value per kilogram of
gross mass, irrespective of the contents.’
It
was common cause that the travellers’ cheques were negotiable
instruments as contemplated in clause 8.7.
[3] The travellers’ cheques were lost by the
respondent. The appellant sued for their value in the Johannesburg
High Court. The
respondent relied on the clauses I have quoted as
excluding or limiting liability on its part. The appellant replicated
that he never
intended to exempt the respondent from liability or to
limit its liability and that he was unaware of the existence of the
clauses
in question.
[4] At the trial the main thrust of the appellant’s
case was that Mrs Barnard had made express oral representations
inconsistent
with the conditions printed on the reverse of the
dispatch note. Shongwe J found that she had not and dismissed the
appellant’s
claim but subsequently granted leave to appeal to this
court.
[5] The cross-examination of the appellant during the
trial revealed that at the time the contract between the parties was
concluded,
the appellant knew:
(i) that
a written contract was going to be concluded between himself and the
respondent, and signed by himself or his wife;
(ii) that the document containing the agreement would
have standard terms and conditions; and
(iii) that there could well be ‘exclusions’ in the
contract.
(This
evidence is not surprising in view of the fact that the appellant is
a senior attorney with 44 years experience who practised
commercial
law in Zimbabwe and who did a fair amount of contract work and a
fairly substantial amount of litigation.) The appellant
also conceded
in cross-examination that he could have read the conditions of
carriage had he wished, but that he did not do so. Had
the evidence
stopped there, there would have been actual
consensus
and the
appellant would have been bound by the exclusionary clauses on the
basis that he had agreed to be bound by the conditions
of carriage,
whatever they might have been.
1
But the appellant said in evidence that he was labouring under a
mistake.
[6] Although I do not consider that the appellant’s
evidence went this far, I shall accept in his favour that, when the
contract
was entered into on his behalf, he believed that the
respondent would be obliged to compensate him for the value of the
travellers’
cheques if they were lost whilst in its custody. On
that basis, there was
dissensus
: Mrs Barnard obviously
intended to contract subject to the conditions of carriage, which
excluded such liability.
2
The question then arises whether, despite the appellant’s
unilateral mistake, the
caveat subscriptor
rule applies and
the appellant is nevertheless bound by the exclusionary clauses on
the basis of quasi-mutual assent.
[7] On appeal, the appellant’s counsel (who did not
represent the appellant at the trial) expressly disavowed any
reliance on representations
made by Mrs Barnard as being in conflict
with the exclusionary clauses. Instead, he submitted that Mrs Barnard
knew, or ought reasonably
to have known, that the appellant was
contracting under the mistaken belief that the respondent would be
liable if the travellers’
cheques were lost. If this is so, it
could be argued that the respondent’s reliance on the doctrine of
quasi-mutual assent would
not be reasonable and the appellant would
not be bound by the exclusionary clauses.
3
[8] The submissions made by the appellant’s counsel in
support of the case sought to be made out on appeal may be summarised
as
follows:
(i) Mrs Barnard would have observed that the appellant
and his wife were anxious about the security of the consignment, and
in particular
the possibility of the loss or misappropriation of the
travellers’ cheques;
(ii) it would have been clear to Mrs Barnard that the
appellant and his wife were not experienced clients who had
previously used
the services of the respondent to courier travellers’
cheques;
(iii) Mrs
Barnard herself was aware that as a rule customers tended not to read
the dispatch note, and for this reason she would give
instructions or
directions regarding its completion;
(iv) Mrs
Barnard would have seen that the appellant was involved in signing
the
travellers’ cheques and that his wife was having
difficulty getting to grips with how to complete the dispatch note;
(v) Mrs Barnard would have been aware both from her
interaction with the appellant’s wife and from her previous
dealings with the
public that it was highly improbable that the
appellant or his wife had read or were aware of the standard
conditions;
(vi) the
exclusionary clauses operated particularly harshly towards the
consignor of a negotiable instrument by excluding all liability
in
respect of loss thereof; and they also operated harshly against the
consignor who omitted to fill in the value of the consignment
on the
face of the dispatch note;
(vii) the
exclusionary clauses constituted a drastic curtailment of the rights
which the appellant would otherwise have enjoyed against
the
respondent, in the event of the loss of the travellers’ cheques
while in the possession of the respondent;
(viii) Mrs
Barnard either directed the plaintiff’s wife not to fill in the
value of the consignment or, if she did not actually
give a direction
in this regard, she was aware that the value was not indicated; and
the fact that the value of the consignment was
not filled in was
itself a clear indication that the plaintiff’s wife was not aware
of the R50,00 limitation, let alone the total
exclusion of liability
in the case of negotiable instruments;
(ix) Mrs
Barnard was aware of the provisions of the exclusionary clauses, and
in particular the provisions of clauses 8.6 and 8.7,
and she
appreciated the importance of a consignor such as the appellant being
made aware of such limitations; and
(x) Mrs
Barnard stated that she did not draw these provisions to the
attention of the appellant and his wife because she assumed that
they
could read. But she actually knew, or ought reasonably to have known,
that neither the appellant nor his wife were aware of
the
exclusionary clauses. She should therefore have brought them to the
attention of the appellant or his wife.
[9] However, the question is not whether Mrs Barnard
knew or ought to have known that the appellant was unaware of the
exclusionary
clauses. The question is whether she knew or ought to
have known that the appellant was labouring under a mistake and the
evidence
does not go that far. She did know that the appellant and
his wife were anxious about the safety of the travellers’ cheques
but
the evidence does not establish that she knew, or ought to have
known, that the appellant was under the impression that the
respondent
would compensate him should they be lost ─ so, possibly,
placing her under an obligation to correct his misconception. She
presented
the appellant and his wife with a document which the
appellant appreciated would constitute his contract with the
respondent and
which he realised would contain terms and conditions,
4
and could well contain exclusions, which it did. The fact that the
appellant’s wife did not appreciate this and (at best for the
appellant) did not understand the meaning, contents or import of the
document, is irrelevant. The appellant himself was indifferent
to the
provisions of the conditions of carriage which he knew would be
contained in that document. He did not bother to read them.
There was
no obligation on Mrs Barnard to point out the possible consequences.
5
To hold otherwise would be to introduce a degree of paternalism in
our law of contract at odds with the
caveat subscriptor
rule.
[10] For these reasons I conclude that the appellant’s
mistake was not excusable. It follows that the exclusionary clauses
were
part of the contract between the parties. Clause 8.7 is fatal to
the appellant’s claim.
[11] The appeal is dismissed with costs.
______________
T
D CLOETE
JUDGE
OF APPEAL
Concur: Mthiyane JA
Nugent JA
Malan AJA
Cachalia AJA
1
Durban’s
Water Wonderland (Pty) Ltd v Botha
1999 (1) SA 982
(SCA) at 991E-F.
2
cf
Constantia Insurance Company Ltd v Compusource (Pty) Ltd
2005
(4) SA 345
(SCA) para 16 at 353G-H.
3
Sonap
Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd v
Pappadogianis
[1992] ZASCA 56
;
1992 (3) SA 234
(A) at 241A-E, and authorities referred to;
Constantia Insurance
Co Ltd v Compusource (Pty) Ltd
, above n 2, paras 16 to 23.
4
These
facts distinguish the decision in
Sun Couriers (Pty) Ltd v
Kimberley Diamond Wholesalers
2001 (3) SA 110
(NC) relied on by
the appellant’s counsel on appeal.
5
cf
Afrox Health Care Bpk v Strydom
2002 (6) SA 21
(SCA) para 36.
The present is an
a fortiori
case because of the subjective
knowledge of the appellant.