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حقوق::
شرط محدودیت زمانی
The respondent relied on a time limitation clause in the contract which released it from liability if the appellant failed to issue summons within 90 days ofbeing notified of the repudiation of the claim.
As I aim to illustrate later on in this article, the test for determining whether a time limitation clause is contrary to public policy, as outlined by the court, and the reasoning adopted by the court in arriving at this test, do little to contribute towards a more certain application of public policy in future cases.
In considering the test for public policy, Ngcobo J (as he then was), writing for the majority, placed emphasis on the fact that time limitation clauses, by their nature, limit the constitutionally protected right to seek judicial redress.27 The learnedjustice, however, held that the mere fact that a clause limits a constitutionally protected right does not per se mean that it is contrary to public policy: '1 can conceive of no reason either in logic or in principle why public policy would not tolerate time limitation clauses in contracts subject to the considerations of reasonableness and fairness.'28 In addressing these considerations, Ngcobo J held that there are two questions that must be asked:
Secondly, if the clause is reasonable, whether it should be enforced in the light of the circumstances which prevented compliance with the time limitation clause.'29
See also para 51: 'In general, the enforcement of an unreasonable or unfair time limitation clause will be contrary to public policy.'
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