What are standard terms and conditions of sale?
Are standard terms and conditions of sale enforceable in South Africa?
“A supplier must not— (a) offer to supply, supply, or enter into an agreement to supply, any goods or services— (i) at a price that is unfair, unreasonable or unjust; or (ii) on terms that are unfair, unreasonable or unjust (s 48(1)). Any notice to consumers or provision of a consumer agreement that purports to— (a) limit in any way the risk or liability of the supplier or any other person; ... must be drawn to the attention of the consumer in a manner and form that satisfies the formal requirements of subsections (3) to (5) (s 49(1))... in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances; and before the earlier of the time at which the consumer ... enters into the transaction or agreement (s 49(4)).”
“The Plaintiff was furthermore presented with two full pages, which was not very conspicuous or clearly delineated, and in relation to which no effort was made to draw the Plaintiff’s attention to any of the provisions. It was furthermore written in extremely small font... severing all the provisions attached to the credit application purporting to limit the risk or liability of the appellant from the rest of the agreement was sought.”
“I have come to the conclusion that in the circumstances of this particular case to enforce the exemption clause would be unfair and unjust... neither the disclaimer notices nor the exemption clauses are a good defence to his claim. A term in a contract that is inimical to the values enshrined in our Constitution is contrary to public policy and is, therefore, unenforceable.”
“This would require the party seeking to avoid the enforcement of the clause to demonstrate why its enforcement would be unfair and unreasonable in the given circumstances... its enforcement would be contrary to public policy.”
When you need a Standard Terms & Conditions of Sale
- A business sells goods or services repeatedly and wants one consistent set of terms — covering price, payment, delivery, risk, ownership and liability — to apply to every order instead of negotiating each sale from scratch.
- A supplier wants to protect itself against late payment (interest, suspension of supply, reservation of ownership until paid) and against open-ended liability for defects, delays or consequential loss.
- A company trades with consumers and must make its sale terms Consumer Protection Act-compliant — plain language, fair terms, and conspicuous notice of any risk- or liability-limiting clause as section 49 requires.
- A seller issues quotations, order forms, credit applications, delivery notes or invoices and needs those documents to actually incorporate its standard terms so they bind the customer, not just sit in unread small print.
- A business sells online and needs website "terms of sale" that bind the buyer at checkout and meet both the CPA and the Electronic Communications and Transactions Act requirements for incorporation by reference.
What a Standard Terms & Conditions of Sale should contain
Incorporation and order of precedence
States that these standard terms govern every sale, how they are accepted (by signature, placing an order, or taking delivery), and that they prevail over the buyer’s own purchase-order terms. This is the clause that wins the "battle of the forms" and ensures the terms are actually incorporated — without it, a court may find the buyer never agreed to them.
Price, payment and interest on late payment
Fixes the price (and whether it is VAT-inclusive), the payment period, and the consequences of late payment — mora interest, suspension of further supply, and recovery of collection costs. For consumer sales the price and charges must be disclosed in plain language and may not be unfair or unreasonable under section 48 of the CPA.
Passing of risk and delivery
Specifies exactly when risk of loss or damage moves from seller to buyer — typically on delivery or collection — and the delivery terms, lead times and what happens on short or late delivery. Separating the passing of risk from the passing of ownership is essential, because the two do not have to happen at the same moment.
Reservation of ownership (title retention)
Keeps ownership of the goods with the seller until the full price is paid, even though the buyer has possession. This gives the seller real security: if the buyer fails to pay or becomes insolvent, the goods can be reclaimed rather than the seller ranking as an unsecured creditor. It must be drafted to survive the buyer’s on-sale and insolvency.
Warranties, defects and returns
Sets out what the seller does and does not warrant, the process and time limits for reporting defects, and returns. For consumer sales this clause cannot override the CPA’s implied warranty of quality (section 56) or the six-month right to return defective goods — any attempt to contract out of those statutory rights is void.
Limitation and exclusion of liability
Caps or excludes the seller’s liability (for example, for consequential or indirect loss) and is the clause most often challenged. Under section 49 of the CPA it must be in plain language and conspicuously drawn to a consumer’s attention before contracting; it cannot exclude liability for gross negligence or loss caused by failing to warn of an unusual risk, and a court will not enforce a term that is contrary to public policy.
Notice of risk and consumer acknowledgement
Where the goods or activity carry an unusual character or risk, section 49 of the CPA requires the supplier to specifically draw that risk to the consumer’s attention and obtain the consumer’s assent by signature or other positive conduct. This is the clause that makes an assumption-of-risk or indemnity term actually stick against a consumer.
Domicilium, governing law, breach and dispute resolution
A chosen address for legal notices and service (domicilium citandi et executandi), confirmation that South African law governs, a breach-and-cancellation procedure, and how disputes are resolved. For consumer agreements, any term forcing the consumer into a particular forum or waiving rights must comply with the CPA’s limits on prohibited terms.
Standard terms and conditions of sale vs a negotiated bespoke sale agreement
| Feature | Standard terms & conditions of sale | Negotiated bespoke sale agreement |
|---|---|---|
| How they arise | Pre-printed by the supplier and applied to every customer | Drafted and negotiated for a specific deal and counterparty |
| Negotiation | Take-it-or-leave-it; buyer rarely changes the wording | Both parties negotiate and agree each material term |
| How they bind the buyer | By incorporation — signature, reference or conspicuous notice | By signature of the agreed, individually-considered contract |
| Risk-limiting clauses | Heavily scrutinised; must be conspicuous and CPA-compliant | Assumed to be genuinely agreed, but still subject to public policy |
| Best use | High-volume, repeat sales of similar goods or services | High-value, one-off or complex sales needing tailored terms |
| Main risk | A key term is unenforceable because it was never incorporated or notified | Cost and time of negotiating each contract individually |
Common South African pitfalls
- Burying liability-limiting clauses in tiny, inconspicuous print. Section 49 of the CPA and the incorporation cases require risk- and liability-limiting terms to be drawn to the buyer’s attention conspicuously and before contracting. As UPS SCS v Van Wyk shows, "extremely small font" that is "not very conspicuous" can be severed from the contract entirely, leaving the supplier fully exposed.
- Trying to contract out of the consumer’s non-excludable rights. For consumer sales the CPA’s implied warranty of quality (section 56), the right to return defective goods, and the prohibition on unfair terms (section 48) cannot be excluded by standard terms. A clause that purports to waive these is void, and over-reaching terms can attract regulatory action.
- Excluding liability for gross negligence or death/injury. South African courts will not enforce an exemption clause that is contrary to public policy. In Naidoo v Birchwood Hotel a clause purporting to exclude liability even for gross negligence and bodily injury was held to be no defence — drafting the exclusion too widely makes it unenforceable.
- Confusing the passing of risk with the passing of ownership. If the terms do not clearly separate when risk moves (loss/damage) from when ownership moves (title/security), the seller can find it carries the risk while having lost its reservation-of-ownership security, or vice versa — a costly gap on a buyer’s default or insolvency.
- Losing the "battle of the forms". When the seller’s terms and the buyer’s purchase-order terms conflict and neither side resolves it, a court decides which set was incorporated. Without a clear precedence and acceptance clause — and proof the buyer had notice — the supplier may be bound by the buyer’s terms instead of its own.
- Relying on website terms without proper incorporation. For online and emailed sales, simply having a "terms" link is not enough; the buyer must have reasonable notice and assent before or at the time of the order, and the terms must meet the CPA and the Electronic Communications and Transactions Act requirements, or they may not bind the buyer.
Frequently asked questions
Are standard terms and conditions of sale legally binding in South Africa?
Yes, provided they are validly incorporated into the contract — by the buyer signing, by clear reference, or by reasonable notice before the deal is concluded — and, for consumer sales, they comply with the Consumer Protection Act. A term that was never properly brought to the buyer’s attention, or that is unfair or contrary to public policy, will not bind the buyer.
Do my terms and conditions bind a customer who did not read them?
Usually yes, under the caveat subscriptor rule a person who signs is bound even if they did not read the terms. But this has limits: if a term is unexpected or onerous — especially one limiting your liability — you must take reasonable steps to draw it to the customer’s attention, and for consumers section 49 of the CPA makes conspicuous notice compulsory. Hidden or fine-print risk clauses can be unenforceable.
Does the Consumer Protection Act apply to my standard terms of sale?
It applies whenever you supply goods or services to a "consumer" in the ordinary course of business, which covers most retail and small-business sales. The CPA then prohibits unfair, unreasonable or unjust terms (section 48), requires plain language, and demands that any clause limiting your liability or shifting risk be conspicuously drawn to the consumer’s attention before contracting (section 49).
Can I exclude or limit my liability in my terms and conditions?
You can limit liability, but not without limits. For consumer sales the limitation must be in plain language and conspicuously drawn to the consumer’s attention under section 49, and you cannot exclude liability for gross negligence, death or personal injury, or override the CPA’s implied quality warranty. A court will also refuse to enforce an exclusion that is contrary to public policy, as in Naidoo v Birchwood Hotel.
What is a "reservation of ownership" clause and should I include one?
A reservation of ownership (or title retention) clause keeps you, the seller, as the legal owner of the goods until the buyer has paid in full, even though the buyer has possession. It is strongly advisable for credit sales: it lets you reclaim the goods if the buyer defaults or becomes insolvent, instead of ranking as an unsecured creditor. It must be drafted to survive on-sale and insolvency.
Whose terms win when my customer sends their own purchase-order conditions?
This is the "battle of the forms". South African courts decide which set was actually incorporated into the contract, looking at what each party communicated and accepted. To make sure your terms prevail, include a clear precedence clause stating that your standard terms govern and that placing an order or taking delivery is acceptance of them — and keep proof the buyer had notice.
Are website or email terms and conditions of sale enforceable?
They can be, but you must do more than provide a link. The buyer must have reasonable notice of the terms and assent to them before or at the time of ordering, and the terms must satisfy both the Consumer Protection Act and the Electronic Communications and Transactions Act on incorporation and plain language. A click-to-accept step is far safer than a passive footer link.
Do I need a lawyer to draft my standard terms and conditions of sale?
It is well worth it. Incorporation, the passing of risk and ownership, CPA-compliant liability limits and conspicuous risk notices all have to be exactly right, or your protection collapses precisely when you need it. MJ Kotze Inc drafts and reviews standard terms and conditions of sale on a fixed-fee basis, tailored to your goods, your customers and the Consumer Protection Act.
Sources & authority
- Consumer Protection Act 68 of 2008, ss 48–49 (lawlibrary.org.za canonical work)
- UPS SCS South Africa (Pty) Ltd v Van Wyk t/a Skydive Mossel Bay (421/2020; 422/2020) [2021] ZASCA 131 (1 October 2021)
- Naidoo v Birchwood Hotel (2010/47765) [2012] ZAGPJHC 59; 2012 (6) SA 170 (GSJ) (3 April 2012)
- Barkhuizen v Napier (CCT72/05) [2007] ZACC 5; 2007 (5) SA 323 (CC) (4 April 2007)
This guide is general information, not legal advice. It reflects the law as at June 2026.