Philip Stoop
STADIO Higher Education Institution, School of Law, Department Member
- University of South Africa, Mercantile Law, Faculty Memberadd
- mercantile Law, Consumer Protection (Law), Consumer protection law, Consumer Protection, Law of Contracts, Contract Law, and 26 moreLaw and Economics, Plain Legal Language, Procedural fairness, Comparative Law, Law of Contract, Agency, Sale of Goods, Consumer Law, Commercial Law, Human Rights Law, European Convention on Human Rights, Regulation, Patenting of Biotechnology, Contracts, Harmonization of European Contract Law, Law of Domestic and International Sale of Goods, Turkish and EU Consumer Law, Plain Language In Public Policy, The Law, Federal Regulations, Compliance, The Financial Sector, Banking and International Banking Law, Conflict of Laws (Private International Law), International Trade Law and Practice, and Insurace Lawedit
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Research Interests: Engineering and Law
Peter, has in recent years entered into standard-form contracts of which he often does not understand the contents. He, for example, bought a TV from a local furniture store and it malfunctioned after 6 months. Based on a contract clause... more
Peter, has in recent years entered into standard-form contracts of which he often does not understand the contents. He, for example, bought a TV from a local furniture store and it malfunctioned after 6 months. Based on a contract clause that Peter does not understand, the furniture store refuses to replace or repair the TV. So, Peter is upset and no one wants to assist him. Peter has been informed that section 22 of the Consumer Protection Act makes provision for a right to plain and understandable language in consumer contracts.
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The issue of fairness in contracts is often described in terms of juxtapositions such as freedom of contract as against fairness, or individualism as against paternalism, collectivism, or welfarism. The concept 'fairness' has been... more
The issue of fairness in contracts is often described in terms of juxtapositions such as freedom of contract as against fairness, or individualism as against paternalism, collectivism, or welfarism. The concept 'fairness' has been implemented in full in consumer contracts by the Consumer Protection Act (CPA), and the emphasis therefore moved from freedom of contract to fairness. To understand what the concept 'fairness' entails, one has to understand its philosophical context. In this article, I shall therefore explain the philosophical context within which the regulation of fairness in the law of contract, with specific reference to the CPA, must be understood. This article examines a freedom-oriented approach as against a fairness-oriented approach with specific reference to procedural and substantive factors.
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The Consumer Protection Act introduced several concepts and principles which are new to South African law. One such concept is so-called unsolicited goods and services and the prevention thereof as provided for in terms of section 21 of... more
The Consumer Protection Act introduced several concepts and principles which are new to South African law. One such concept is so-called unsolicited goods and services and the prevention thereof as provided for in terms of section 21 of the CPA. Unsolicited goods and services can, in laymen’s language, be described as unrequested or unwanted goods or services and, in the narrow sense, as goods or services that are delivered to a consumer without the consumer’s knowledge or consent for which the consumer is expected to pay. A well-known example of this is where a consumer receives books in the post without having ordered them, together with an invoice in respect thereof, indicating that the consumer will be automatically bound by a purchase agreement with the supplier if the books are not returned to the latter.
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In Australia there is an obligation to promote the informed participation of financial consumers while in South Africa there is an obligation to educate consumers. The Australian obligation is concerned with the financial system as a... more
In Australia there is an obligation to promote the informed participation of financial consumers while in South Africa there is an obligation to educate consumers. The Australian obligation is concerned with the financial system as a whole while the South African obligation has generally been focused on general financial education as a tool to promote financial inclusion. There is no obligation for consumers to attain a minimum standard of literacy in credit or finance generally. Financial literacy is one among a number of strategies directed towards inducing changes in consumer behaviour. It sits between the old regulatory model which relies on disclosure of information for effective and rational decision-making and a newer regulatory model which takes into account individuals' perceptions and behavioural biases and may seek to accommodate for these by imposing obligations on financial services providers beyond the mere disclosure of information. Financial literacy is generally...
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In general, the concept "contractual fairness" can be narrowed down, described and analysed with reference to the two interdependent types of fairness – substantive and procedural fairness. Measures aimed at procedural fairness... more
In general, the concept "contractual fairness" can be narrowed down, described and analysed with reference to the two interdependent types of fairness – substantive and procedural fairness. Measures aimed at procedural fairness in contracts address conduct during the bargaining process and generally aim at ensuring transparency. One could say that a contract is procedurally fair where its terms are transparent and do not mislead as to aspects of the goods, service, price and terms. Despite the noble aims of legislative measures aimed at procedural fairness there are certain limits to the efficacy of procedural measures and transparency. The special procedural measures which must be considered in terms of the Consumer Protection Act 68 of 2008 in order to decide if a contract is fair are analysed in this article, as are other measures contained in the Act, which may also increase procedural fairness, and are discussed so as to allow suppliers to predict whether their contra...
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Generally, the Consumer Protection Act (CPA) does not apply to credit agreements falling within the ambit of the National Credit Act (NCA). The aim of this note is to discuss the exclusion of credit agreements under the NCA from the ambit... more
Generally, the Consumer Protection Act (CPA) does not apply to credit agreements falling within the ambit of the National Credit Act (NCA). The aim of this note is to discuss the exclusion of credit agreements under the NCA from the ambit of the CPA and issues related to it, and, secondly, to discuss aspects related to the overlap between the CPA and NCA. Lastly, the Australian position on the overlap between credit and consumer law is discussed briefly, with specific reference to the concepts “linked credit providers” and “non-linked credit providers”.
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In layman's language, overselling and overbooking is the sale of goods or services in excess of their actual capacity. Unfortunately, this is a common practice in many industries locally and internationally. Many jurisdictions have... more
In layman's language, overselling and overbooking is the sale of goods or services in excess of their actual capacity. Unfortunately, this is a common practice in many industries locally and internationally. Many jurisdictions have adopted regulations protecting consumers against overbooking and overselling of flight tickets (see, for example, European Council Regulation 261/2004 establishing common rules on compensation and assistance to passengers in the event of being denied boarding and of cancellation or long delay of flights (available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:EN:PDF, accessed on 1 July 2013). In practice, overselling and overbooking usually occurs intentionally as a strategy where suppliers expect that some consumers will not consume all the goods or services they are entitled to, or that some consumers will cancel their bookings. This ensures that all available goods and services will be used, resulting in the maximum return on investment. Often, though, consumers do not receive what they are entitled to.
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The Rental Housing Act 50 of 1999 (the Act) came into force on 1 August 2000. This Act regulates the relationship between landlords and tenants and it provides for dispute resolution by the Rental Housing Tribunal. This Act has often been... more
The Rental Housing Act 50 of 1999 (the Act) came into force on 1 August 2000. This Act regulates the relationship between landlords and tenants and it provides for dispute resolution by the Rental Housing Tribunal. This Act has often been criticised for its shortcomings especially pertaining to enforcement (SI Mohamed 'Enforcement of Rental Housing Tribunal Orders' June 2008 Property Law Digest 3; PN Stoop 'The law of lease' 2008 Annual Survey of South African Law 891; SI Mohamed 'RHTs "Exclusive" Jurisdiction over Unfair Practice' June 2012 Property Law Digest 9). However, the Constitutional Court in Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) stressed the importance of the Act and the Rental Housing Tribunal. The shortcomings of the Act have recently been addressed by enactment of the Rental Housing Amendment Act 35 of 2014 (Amendment Act), which will come into operation on a date to be proclaimed. Only a few l...
Research Interests: Business, Law, Jurisdiction, Enforcement, Lease, and 4 moreRental Housing, Notice, Renting, and Tribunal
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Research Interests: Business, Contracts, Contract Law, Human Rights Law, Regulation, and 13 moreCommercial Law, Consumer Law, Collectivism & Individualism, Consumer protection law, Paternalism, European Convention on Human Rights, Contract law and Consumer Protection, Harmonization of European Contract Law, Patenting of Biotechnology, Freedom of Contract, Law of Domestic and International Sale of Goods, Turkish and EU Consumer Law, and Contractual fairness
The Consumer Protection Act 68 of 2008 was due to become fully operational on 24 October 2010 (s 122 read with item 2(2) of sch 2). In terms of item 2(3)(a) of Schedule 2 to the Act, the Minister postponed the implementation date to 31... more
The Consumer Protection Act 68 of 2008 was due to become fully operational on 24 October 2010 (s 122 read with item 2(2) of sch 2). In terms of item 2(3)(a) of Schedule 2 to the Act, the Minister postponed the implementation date to 31 March 2011 (GenN 917 GG 33581 of 23 September 2010). Draft Consumer Protection Regulations were published for comment in 2010 (GenN 1099 GG 33818 of 29 November 2010). The regulations under the Act, entitled 'Consumer Protection Act, 2008 Regulations' were published in 2011 (GN R293 GG 34180 of 1 April 2011). (For a discussion of the Act, see 2009 Annual Survey 860-2.)
Research Interests: Engineering and Reference
A person may acquire rights or be released from obligations through the passage of time. This is known as prescription. The objective of prescription is to achieve legal certainty and finality in the relationship between a debtor and a... more
A person may acquire rights or be released from obligations through the passage of time. This is known as prescription. The objective of prescription is to achieve legal certainty and finality in the relationship between a debtor and a creditor, with the focus on protecting a debtor (consumer) against the unfairness of having to defend old claims. Old claims are therefore after the elapsing of specific time periods extinguished through prescription. A debtor must then specifically raise prescription as a defence against claims from creditors based on prescribed debts. The prescription of consumer debts is regulated by the National Credit Act 34 of 2005 (when the credit agreement falls under the NCA) and the Prescription Act 68 of 1969. The Prescription Act generally regulates all aspects of the prescription, which would also include consumer debts, while section 126B of the National Credit Act regulates and prohibits certain practices related to prescription, such as the selling of ...
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In Australia there is an obligation to promote the informed participation of financial consumers while in South Africa there is an obligation to educate consumers. The Australian obligation is concerned with the financial system as a... more
In Australia there is an obligation to promote the informed participation of financial consumers while in South Africa there is an obligation to educate consumers. The Australian obligation is concerned with the financial system as a whole while the South African obligation has generally been focused on general financial education as a tool to promote financial inclusion. There is no obligation for consumers to attain a minimum standard of literacy in credit or finance generally. Financial literacy is one among a number of strategies directed towards inducing changes in consumer behaviour. It sits between the old regulatory model which relies on disclosure of information for effective and rational decision-making and a newer regulatory model which takes into account individuals' perceptions and behavioural biases and may seek to accommodate for these by imposing obligations on financial services providers beyond the mere disclosure of information. Financial literacy is generally the ability to understand how money works, how a person can earn money or make it more. It specifically refers to the set of skills and knowledge that allows people to make informed and effective decisions with all of their financial resources. This article discusses Australian and South African legal obligations and social responsibilities aimed at promoting the financial literacy of consumers.
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2012 Journal of Contemporary Roman Dutch Law 75(4)
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Unsolicited goods and services and the prevention thereof are contained in section 21 of the Act. The authors look at the structure, interpretation and purpose of the section; they discuss what constitute unsolicited goods and services... more
Unsolicited goods and services and the prevention thereof are contained in section 21 of the Act. The authors look at
the structure, interpretation and purpose of the section; they discuss what constitute unsolicited goods and services
and whether the section imposes any obligations on or create additional rights for a consumer; and whether the
section should be challenged.
the structure, interpretation and purpose of the section; they discuss what constitute unsolicited goods and services
and whether the section imposes any obligations on or create additional rights for a consumer; and whether the
section should be challenged.
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Research Interests: Contracts, Contract Law, Human Rights Law, Regulation, Commercial Law, and 9 moreConsumer Protection (Law), Consumer Law, Consumer protection law, European Convention on Human Rights, Contract law and Consumer Protection, Harmonization of European Contract Law, Patenting of Biotechnology, Law of Domestic and International Sale of Goods, and Turkish and EU Consumer Law
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2012 Annual Survey of South African Law 691-699
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Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of the law covering merchants’ status and obligations – including the laws governing state intervention in economic activities – in... more
Derived from the renowned multi-volume International
Encyclopaedia of Laws, this practical analysis of the law covering merchants’ status and obligations – including the laws governing state intervention in economic activities – in South Africa provides quick and easy guidance on such commercial and economic matters as business assets, negotiable instruments, commercial securities,and regulation of the conditions of commercial transactions. Lawyers who handle transnational business will appreciate the explanation of local variations in terminology and the distinctive concepts that determine practice and procedure.
Starting with a general description of the specifically applicable concepts and sources of commercial law, the book goes on to discuss such factors as obligations of economic operators and institutions, goodwill, broker/client relations, commercial property rights, and bankruptcy. Discussion of economic law covers the laws governing establishment, supervision of economic activities, competition law, and government taxation incentives. These details are presented in such a way that readers who are unfamiliar with specific terms and concepts in varying contexts will fully grasp their meaning and significance.
Thorough yet practical, this convenient volume is a valuable tool for business executives and their legal counsel with international interests. Lawyers representing parties with interests in South Africa will welcome this very useful guide, and academics and researchers will appreciate its value in the study of comparative commercial and economic law.
Contributors: Philip Stoop, Coenraad Visser, Chrizell Chürr, Boaz Masuku, Phumudzo Munyai, Henriet de Ru, Fanie van Zyl, Rafia de Gama and Michel Koekemoer
Encyclopaedia of Laws, this practical analysis of the law covering merchants’ status and obligations – including the laws governing state intervention in economic activities – in South Africa provides quick and easy guidance on such commercial and economic matters as business assets, negotiable instruments, commercial securities,and regulation of the conditions of commercial transactions. Lawyers who handle transnational business will appreciate the explanation of local variations in terminology and the distinctive concepts that determine practice and procedure.
Starting with a general description of the specifically applicable concepts and sources of commercial law, the book goes on to discuss such factors as obligations of economic operators and institutions, goodwill, broker/client relations, commercial property rights, and bankruptcy. Discussion of economic law covers the laws governing establishment, supervision of economic activities, competition law, and government taxation incentives. These details are presented in such a way that readers who are unfamiliar with specific terms and concepts in varying contexts will fully grasp their meaning and significance.
Thorough yet practical, this convenient volume is a valuable tool for business executives and their legal counsel with international interests. Lawyers representing parties with interests in South Africa will welcome this very useful guide, and academics and researchers will appreciate its value in the study of comparative commercial and economic law.
Contributors: Philip Stoop, Coenraad Visser, Chrizell Chürr, Boaz Masuku, Phumudzo Munyai, Henriet de Ru, Fanie van Zyl, Rafia de Gama and Michel Koekemoer
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2012 LL.D-thesis, University of South Africa The thesis analyses the concept ‘fairness’ in consumer contracts regulated by the Consumer Protection Act 68 of 2008, mainly from the perspective of a freedom and fairness orientation. It... more
2012 LL.D-thesis, University of South Africa
The thesis analyses the concept ‘fairness’ in consumer contracts regulated by the Consumer Protection Act 68 of 2008, mainly from the perspective of a freedom and fairness orientation. It discusses the evolution of ‘fairness’ as background to a more detailed discussion of the classification of fairness into substantive and procedural fairness. The thesis examines dimensions of fairness, factors which play a role in the determination of fairness, and fairness-oriented approaches in an attempt to formulate a framework for fairness in consumer contracts. The main aspects that should be taken into account to justify a finding of fairness, or to determine whether a contract is fair, are identified. This analysis addresses, too, the extent to which the fairness
provisions of the Consumer Protection Act are appropriate (with reference to the law of South Africa, Europe, and England).
The thesis analyses the concept ‘fairness’ in consumer contracts regulated by the Consumer Protection Act 68 of 2008, mainly from the perspective of a freedom and fairness orientation. It discusses the evolution of ‘fairness’ as background to a more detailed discussion of the classification of fairness into substantive and procedural fairness. The thesis examines dimensions of fairness, factors which play a role in the determination of fairness, and fairness-oriented approaches in an attempt to formulate a framework for fairness in consumer contracts. The main aspects that should be taken into account to justify a finding of fairness, or to determine whether a contract is fair, are identified. This analysis addresses, too, the extent to which the fairness
provisions of the Consumer Protection Act are appropriate (with reference to the law of South Africa, Europe, and England).
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Algemene Beginsels van Kommersiele Reg provides non-law students (in Afrikaans) with a succinct exposition to the general principles of commercial law. The book contains a wide selection of topics influenced by the Independent... more
Algemene Beginsels van Kommersiele Reg provides non-law students (in Afrikaans) with a succinct exposition to the general principles of commercial law. The book contains a wide selection of topics influenced by the Independent Regulatory Board for the Auditors law service course. The 7th edition has been updated to reflect recent statutory and other developments in commercial law and includes a new chapter on the Consumer Protection Act 68 of 2008.
Contents Include:
•Introduction of the South African legal system and the science of law
•General principles of the law of contract
•Specific contracts
•Sale, lease, insurance, credit agreements
•Specific contracts
•Labour law
•Intellectual property law and franchising
•Alternative dispute resolution
•The law of agency
•Forms of business enterprise
•The law of competition
•Security
•Banking law and paying instruments: selected topics
•Other methods of payment
•The law of trusts
•The law of insolvency
•The law of administration of estates
•Consumer protection
Of Interest and Benefit to:
•Commercial lawyers
•Students
•Academics
•Corporates
Contents Include:
•Introduction of the South African legal system and the science of law
•General principles of the law of contract
•Specific contracts
•Sale, lease, insurance, credit agreements
•Specific contracts
•Labour law
•Intellectual property law and franchising
•Alternative dispute resolution
•The law of agency
•Forms of business enterprise
•The law of competition
•Security
•Banking law and paying instruments: selected topics
•Other methods of payment
•The law of trusts
•The law of insolvency
•The law of administration of estates
•Consumer protection
Of Interest and Benefit to:
•Commercial lawyers
•Students
•Academics
•Corporates
General Principles of Commercial Law / Algemene Beginsels van Kommersiele Reg provides non-law students with a succinct exposition to the general principles of commercial law. The book contains a wide selection of topics influenced by... more
General Principles of Commercial Law / Algemene Beginsels van Kommersiele Reg provides non-law students with a succinct exposition to the general principles of commercial law. The book contains a wide selection of topics influenced by the Independent Regulatory Board for the Auditors law service course. The 7th edition has been updated to reflect recent statutory and other developments in commercial law and includes a new chapter on the Consumer Protection Act 68 of 2008.
Contents Include:
•Introduction of the South African legal system and the science of law
•General principles of the law of contract
•Specific contracts
- Sale, lease, insurance, credit agreements
- Specific contracts
- Labour law
- Intellectual property law and franchising
- Alternative dispute resolution
- The law of agency
- Forms of business enterprise
- The law of competition
- Security
- Banking law and paying instruments: selected topics
- Other methods of payment
- The law of trusts
- The law of insolvency
- The law of administration of estates
- Consumer protection
Of Interest and Benefit to:
•Commercial lawyers
•Students
•Academics
•Corporates
Contents Include:
•Introduction of the South African legal system and the science of law
•General principles of the law of contract
•Specific contracts
- Sale, lease, insurance, credit agreements
- Specific contracts
- Labour law
- Intellectual property law and franchising
- Alternative dispute resolution
- The law of agency
- Forms of business enterprise
- The law of competition
- Security
- Banking law and paying instruments: selected topics
- Other methods of payment
- The law of trusts
- The law of insolvency
- The law of administration of estates
- Consumer protection
Of Interest and Benefit to:
•Commercial lawyers
•Students
•Academics
•Corporates