Advocate Louis Nel, also known as Louis-the-Lawyer, shares some pointers about what to consider including in your company terms and conditions.
Given the flurry of legal issues around COVID-19 and its impact on business, it seems there is a much greater awareness of the need for proper terms and conditions (‘T&C’).
This awareness seems to be due to the shock awakening that if you don’t have a force majeure (‘FM’) clause in your T&C, the effects of COVID-19 take on a completely different legal connotation. You can only rely on FM if you have a FM clause in your T&C. The response from most people that I speak to is: “Wow, I did not know that!”
“You can only rely on force majeure if you have a clause [for it] in your T&C.”
You must bear in mind that FM is but a small part of your T&C. The real issue is why you should have T&C at all, and if you have them, how to manage them in such a way that it forms the essence of your dealings with customers and suppliers.
An important aspect of T&C is authority. If an individual is entering into a contract with you on behalf of third parties (‘TP’), you need a guarantee that he is duly authorized to contract and accept the T&C on behalf of such TP e.g. a company or a group. (If the group comprises underage school children, you must bear in mind the common law duty of care.)
“It is a good idea to widen the scope of your T&C. For example, have a clause that clearly stipulates that the T&C apply to all dealings with the potential customer.”
It is a good idea to widen the scope of your T&C. For example, have a clause that clearly stipulates that the T&C apply to all dealings with the potential customer, i.e.: enquiries, advice, quotes, estimates, bookings, etc. The reason I use the word ‘potential’ is that the CPA applies to such a party, whether or not any business is finally concluded!
DISCLAIMER: Each case depends on its own facts & merits. The above does not constitute advice. Independent advice should be obtained in all instances.
LEGAL ADVICE CLUB: You can obtain specialized tourism advice from Louis (37 years in tourism) on an hoc basis or by joining his legal advice club, for which the fee for the first hour is only R750.
Have a legal question?
If you have a legal question that you’d like Advocat Louis Nel to answer for you, email it through to us: pippa@independentwriting.co.za.
Meet Louis-the-Lawyer
Advocate Louis Nel studied at the universities of Stellenbosch, UCT, Wits, Tulane (New Orleans, USA), and London. His focus is travel and tourism, logistics and the Small, Micro & Medium Enterprise (’SMME’) markets. He is a regular contributor to various publications and has appeared on television and radio. He has been addressing audiences at conferences locally and internationally since 1990.
He has advised 293 businesses, written 265 articles and given 181 presentations on the Consumer Protection Act (CPA), and he has advised 58 businesses, written 85 articles and given 31 presentations on the Protection of Personal Information Act (POPI).
He’s also active in responsible and sustainable tourism, and sits on the board of the Event Greening Forum.
He is married to Sue; they have four children and one grandchild, and live in Bryanston. He is an avid reader, gardener, birder, nature lover, wine enthusiast, and writes poetry and short stories in his spare time.
Contact details
c: 083 679 4556
