The Sunday Mail
Legal Matters with Arthur Marara
There are many people who complain about too much Latin in law. This can be explained in terms of its Roman-Dutch origins. The majority of the ancient writers who are considered as authorities wrote in Latin. The principle and practice nowadays has been to focus more now on communication and to ensure that there is so much clarity in the write ups, and agreements between the parties. You will still find some Latin terms being thrown in here and there in agreements and Court judgments. In a future article I will demystify what some Latin terms mean.
This week I want to touch on a principle called, “caveat subscriptor”. It’s connected to an activity that we do almost on a daily basis; entering into contracts.
Signer beware!
Daily we enter into agreements whether we know it or not. Some are written other are written. Even in the digital era, we are still signing agreements. If you are on WhatsApp you had to “agree” to the terms and conditions before they could allow you to use their platform. The same applies to Facebook, Instagram and other social media platforms. Some of the terms are usually very long such that you give up any attempt to read them, so you quickly “accept”.
There are also times when we are often invited to sign physical agreements. Have you ever noticed that some people simply look for where their name is and just rush to append their signature without even reading the terms of the contract? Unfortunately, once you sign the agreement, you cannot turn around and say that you did not read it because the law says, “signer beware” — that is the literal meaning of “caveat subscriptor”.
In the case of Muchabaiwa v Grab Enterprises (Pvt) Ltd 1996 (2) ZLR 691 (SC) KORSAH JA expanded the principle, thus: “The general principle which applies to contracts, and commonly designated as caveat subscriptor, is that a party to the contract is bound by his signature, whether or not he has read or understood the contract, or the contract was signed with blank spaces later to be filled in.”
Expatiating on this principle in National and Grindlays Bank v Yelverton 1972 (1) RLR 365 (G) at 367; 1972 (4) SA 114 (R) at 116G-H, DAVIES J cited with approval, the following statement by INNES CJ in Burger v Central South Africa Railways 1903 TS 571 and 578 (decided before the promulgation of s 6 of the General Laws Amendment Act): “It is a sound principle of law that a man, when he signs a contract, is taken to be bound by the ordinary meaning and effects of the words which appear over his signature.””
The authorities cited earlier highlight the principle that the signatory to an agreement is bound by the impression of assent created by his or her signature in the mind of the contract enforcer. The law is settled on the effect of signing documents. In Knocker v Standard Bank of SA 1933 AD 128 at 132 the Court held that; “ . . . the person who signs a document is acquainted with its contents”.
Professor RH Christie in Business Law in Zimbabwe, 1985 at p 67 observed that; “The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and if this principle were not upheld any business enterprises would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule is, therefore, that a party to a contract is bound by his signature whether or not he has read and understood the contract . . . ”
“Read and understand”
This is a key component as per the Muchabaiwa judgment. A number of times clients approach me, and say that they are having disputes with a party they entered into an agreement with. My first question is;
Where is the agreement? (Keep copies always)
What does it say? (What are the terms)
What is the problem? (What is the breach being alleged or complained of?
It turns out that a number of times what is contained in the agreement was not either known or understood. You cannot turn around and claim that you did not fully understand and agreement that you signed yourself.
Ensure that you have read the agreement. There are agreements which are very long especially if they are coming from some lawyers. It’s often said that lawyers back then used to be paid per word hence very long agreements. If the agreement is too long and you are incapable of fully understanding it, it’s better to pay a lawyer to go through the agreement for you so that you can get professional advice before committing to an agreement.
The presumption of law is that a person who signs a document is acquainted with its contents. Once a person appends his or her signature to a document, he or she accepts the contents therein. There are instances some people allege that they signed under duress. This shifts the onus to you to prove duress. If you cannot show that you were forced to sign the document, you become liable for the consequences of the document you signed. In the case of Oasis Medical Centre v Beck and Anor, HH 84/16 at p 5 of the cyclostyled judgment, the court stated as follows;
“The signer must beware. Once a person appends his or her signature to a document, it must be known that they are liable for the ensuing consequences and obligations. It was the applicant’s responsibility to read the information about what the document entails before entering into the agreement. I do not believe it is proper for the applicant to try and challenge clause 27 of the lease agreement at this moment in time. It remains bound by its signature.”
Read and understand the agreement!
Blank spaces
There are times some people sign agreements that have not been fully completed. You do this at your own peril. There are times people call me and say they want a certain document notarised, and when I look at it, it’s not filled in. I insist that everything has to be filled in and any blank spaces crossed.
This prevents fraud. If you leave blank spaces, someone will just fill in what they want and you will be tied to your signature at the end of the document. Ensure that all blank spaces are filled in or crossed out. Be vigilant when it comes to your rights.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
