Written by Mari van der Walt
19 April 2022

Warren Buffett said: “It is impossible to unsign a contract, so do all your thinking before you sign.”

Around the globe, people are entering into agreements on a daily basis and on a broad spectrum. It can vary between a complex shareholder’s agreement or something as basic as a cell phone contract. A dilemma often encountered by parties is that they did not read the agreement and are now bound to the terms thereof.

I did not read the agreement that I signed; what can I do?

Simply translated, the Latin principle of caveat subscriptor means “let the signer beware”.

This principle was incorporated into South African law in the case of Burger v Central South African Railways 1903 TS 571, where the court held that “[i]t is a sound principle of law that a man when he signs a contract, is taken to be bound by the ordinary meaning and effect of the words which appear over his signature”.

Whether you choose to read the agreement or not, upon signature thereof, it will be binding and enforceable against you, and you will ultimately be liable to perform in terms thereof.

Do I have a remedy against the caveat subscriptor principle?

Yes, there are two possible remedies available to you:

  1. Iustus error: This doctrine renders a contract void if a material and reasonable mistake occur. Thus, a party will not be bound to an agreement if he mistakenly gave consent, and such a mistake is material and reasonable. This principle was explained in the case of George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 471A–D: “When can an error be said to be justus for the purpose of entitling a man to repudiate his apparent assent to a contractual term? As I read the decisions, our Courts, in applying the test, have taken into account the fact that there is another party involved and have considered his position. They have, in effect, said: Has the first party – the one who is trying to resile – been to blame in the sense that by his conduct, he has led the other party, as a reasonable man, to believe that he was binding himself? … If his mistake is due to a misrepresentation, whether innocent or fraudulent, by the other party, then, of course, it is the second party who is to blame and the first party is not bound.”
  2. Signing an agreement without proper consent: If you signed the agreement without proper consent, the agreement would be voidable. This will be, for example, if you signed the agreement under duress, undue influence, bribery or by way of misrepresentation.

No matter the significance of an agreement, it is imperative that you consult an attorney prior to the signature thereof. Thus, be sure to contact the team at Burger Huyser Attorneys to peruse the agreement prior to your signing thereof to ensure that your interests are protected and that you are aware of the terms to which you will be bound.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE