Is agreement binding or not?

2017-08-02 06:01
Chiara Claassens, candidate attorney, Phatshoane Henney Attorneys.

Chiara Claassens, candidate attorney, Phatshoane Henney Attorneys.

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Question:

I recently responded to a Facebook post of a breeder selling puppies.

I Facebook messaged the breeder, indicating that I wanted one of the puppies and would pay the price.

We communicated only through Facebook.

We agreed on a date for me to pick up the puppy and pay the price in cash.

When I went to pick up the puppy, I was disappointed.

The breeder told me that all the puppies had been sold.

He said that because there was no contract between us and we were just messaging through Facebook, he had sold it to someone else on a first come, first serve basis.

Surely he couldn’t just sell the puppy to someone else?

Answer:

In terms of our law, a valid contract is formed once certain requirements are met, namely that the parties must have the contractual capacity to act, there must be a valid offer and acceptance and consensus between the parties, the contract must be lawful, and the performance under the contract must be physically possible.

Certain contracts require additional formalities, but as a general rule, the above requirements need to be met before a valid contract can come into existence.

It also means that if electronic communications between parties meet these requirements, a valid and enforceable contract can come into existence.

This is confirmed by the Electronic Communications and Transactions Act 25 of 2002 (“ECT Act”) which confirms that information can have legal force despite it being in an electronic format such as a Facebook message.

The first step in determining if a valid contract was concluded is to look at whether there was a valid offer.

An offer must set out clearly of what is being offered.

This allows another party the ability to accept an offer of which they have full knowledge and have the intention to accept.

The acceptance of an offer creates a binding contract between parties.

An offer is deemed to be accepted when the offer is unconditional and unequivocal; the offer is accepted by the person to whom it was addressed; the acceptance is in response to the offer; and the acceptance complies with set formalities (if any).

In your case it could be argued that the Facebook post created a general invitation to the public to contract, but that a valid contract came into existence once you and the breeder had, through messaging, established the details of the offer, which were accepted by the parties to create a binding electronic contract.

However, each case must be considered on its own merits and the detail of your communications with the breeder will hold the key as to whether there are sufficient grounds confirming the existence of a valid contract which meets the requirements set out above.

– Chiara Claassens, candidate attorney, Phatshoane Henney Attorneys

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