Contract Law- A Déluge of Norms in Search of Principles: The Common European Sales Law and the South African Consumer Protection Act

Abstract

It is trite law that legislation which protects the consumer causes a surge of new norms. This article proposes that from these new norms found in the mandatory rules of consumer legislation it is possible to extract principles. The European Commission’s proposal for a regulation on a Common European Sales Law (CESL) and the South African Consumer Protection Act (CPA) are analysed in an attempt to establish and ascertain principles which are aimed at controlling adjudication in a fair and just manner as opposed to a regime where free discretionary adjudication reigns. From the new norms contained in the mandatory rules of the CESL and the South African CPA it is possible to extract an information principle and a principle of fair dealing. The Draft Common Frame of Reference has identified freedom of contract, justice security and efficiency as the underlying principles of contract law. It is suggested that the obligation of information and fair dealing are recognised as independent principles which may facilitate bridging the divide between classical and consumer contract law.