Gaining Ground? ‘Rights’ and ‘Property’ in South African Land Reform by Deborah James

AuthorPauline E. Peters
Publication Date01 Jan 2009
DOIhttp://doi.org/10.1111/j.1468-2230.2009.00738_1.x
some mention of non es factum as vitiating consent to boilerplate terms. The albeit
limited treatment of the EC Directive on UnfairTerms in Consumer Contracts in
Gillette’s chapter is gratifying, but further discussion of the relevant caselaw, and of
agencies such as the O⁄ce of Fair Trading in the UK, would have painted a more
complete picture of the role of institutional regulation of non-negotiated terms.
Marotta-Wugler’s ingenious chapter o¡ers the work’s most empirically
grounded discourse, analysing more than six hundred software licenses to con-
clude thatthere is little evidence that choice of forum (US state) clauses are being
used oppressively to limit the r ights of consumers, for example by denying jury
trials or class actions. Unfortunately, her chapter’s contention that arbitration is
necessarily cheaper and faster than lit igation (51) is questio nable and some further
discussion of renvoi (domestic laws which point to foreign laws in some circum-
stances) was needed. The novel concept of contract as property, discussed £eet-
ingly in Smiths chapter, should have been further developed as an issue of
copyright, especially in light of the widespread use of D.I.Y. legal forms which
challenge lawyer’s rights to the fruits of their intellectual labour. Radins equating
of contract to the product to which it refers in the penultimate chapter is Boiler-
plate’s most captivating and unifying theoryas it re-iterates the market-based jus-
ti¢cation for upholding boilerplate language that is the conce it of the book’s title.
Consumers will often choose to pay more in exchange for reading or compre-
hending less and this is as much an aspect of the overall transaction as theirevalua-
tion of the features of the purchased commodity itself.
David Collins
n
Deborah James, Gaining Ground? ‘Rights and ‘Property’ in South African
Land Reform,Abingdon, Oxford & New York: Routledge-Cavendish, 2007,
pb d28.99.
Gaining Ground?‘Rights’a nd ‘Property’ in South African Land Reform ^ the recipientof
the AfricanStudies AssociationsEl liott P. Skinner BookAward ^ tells an absorb-
ing storyof the problemsi n laying the overwhelmingburden of societal transfor-
mation on land reform. Though the story is about South Afr ica, it is relevant to
other countries in Africa and in post-socialist Europe and Asia.That ‘land reform
is a promise . . . as yet unful¢lled’ (9) lies partly in the complexity of the policy
and associated programmes but mainly in its interaction with socio-political
conditions that demand more than a land reform can produce. Here, James
conclusions ¢t with those of a number of prominent South African commenta-
tors ^ academic and activist ^ on the land policy. For example, Cherryl Walker
says that,‘Land reform [in South Africa] . . . is overloaded with the claims of his-
tory and the twinned and incongruent imperatives of redress for the past and
development for the future . . .’ (‘The Limits to Land Reform: Rethinking the
n
The City Law School,City University,London
Reviews
132 r2009 The Authors. Journal Compilation r2009 The Modern Law Review Limited.
(2009) 72(1) 130^155

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