Barkhuizen v Napier

Barkhuizen's house burned down. His insurance policy required claims to be submitted within 90 days. He submitted his claim late and the insurer rejected it based on the time-bar clause. Barkhuizen argued the clause was contrary to public policy and should not be enforced because it produced an unfair result.

• Public policy
• Contractual fairness
• Time-bar clauses
• Constitutional values in contract
• Pacta sunt servanda

The appeal was dismissed. The time-bar clause was enforced and Barkhuizen's claim for insurance proceeds failed.

A contractual term is contrary to public policy and therefore unenforceable if it is inconsistent with constitutional values, considering the terms of the contract and the circumstances of the case. The test has two stages: (1) Does the term offend constitutional values? (2) If yes, should the court refuse to enforce it? Courts must balance the constitutional values of dignity and freedom (supporting contractual autonomy) against the specific values implicated in the case. Pacta sunt servanda (agreements must be kept) itself reflects constitutional values.

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This case established the test for determining when contractual terms are contrary to public policy in constitutional South Africa. It balanced freedom of contract with substantive fairness and clarified how courts should approach challenges to contractual terms based on constitutional values. The case is central to understanding the constitutionalization of contract law.