L19. WhatsApp and Social Media

“I found a photographer online who could take our wedding photos. We started communicating on WhatsApp and she confirmed she was available and gave me her prices which I confirmed looked reasonable. I never told her that I would use her and eventually found someone else. When I informed her that I would not use her, she just replied that we had an agreement and she would claim her fees from me if I did not honour our agreement. Surely, just talking on WhatsApp can’t create a contract?”

Before the Electronic Communications and Transactions Act, 25 of 2002 (“ECTA”) came into effect, there was legal uncertainty as to whether a data message sent electronically (such as a WhatsApp message) could be sufficient to enter into a valid contract. One of the main areas of uncertainty was whether electronic communication could, and should, impose legal obligations on people and whether this form of communication was sufficient to communicate an intention to enter into a legally binding agreement.

This uncertainty was resolved by ECTA, which expressly recognises data messages as a viable method to conclude legally binding agreements. This means that data messages are now a recognised method to engage in actions that give rise to legal obligations, which includes the possibility of concluding electronic contracts by way of data messages sent, for example, via WhatsApp.

That said, for an electronic message to impose legal obligations, the normal requirements for a binding contract must still be met. In South Africa, the following must be present for a contract to be binding on parties, even via WhatsApp:

  1. There must be a valid offer and An offer is made when a person puts forward a proposal with the intention that upon acceptance of the proposal, a binding contract is created. The intention to make an offer and the acceptance of the offer can either be expressed or implied from the conduct of the parties. However, if the offeror does not intend to be bound by the acceptance of her offer, the necessary intention to create a binding contract may be lacking. The acceptance of the offer in question may be communicated by direct or indirect means but must be capable of being inferred from an unambiguous act that indicates acceptance. For example, a facial expression (such as a smile) will not be sufficient to indicate acceptance, but signing an agreement will be a clear indication of acceptance of the terms of the agreement. Furthermore, acceptance of an offer must be in relation to the offer in its entirety, as anything more or less than what was offered (including acceptance together with a reservation) may amount to a counteroffer, which the offeror then has the option to accept or decline.
  2. There must be a consensus between the parties in that they intended an agreement to result from their interaction. This essentially means that the offer by one party (the offeror) must be clearly accepted by the other party (the offeree) and requires that an offer must contain sufficient information to enable the person to whom it is addressed to form a clear idea of exactly what the offeror has in mind. The proposed offer must also be a firm offer. A tentative statement to possibly contract in the future will not be deemed sufficient to amount to a valid offer, and acceptance thereof will not result in the formation of a valid agreement.
  3. The parties must have the capacity to enter into a contract. In South African law, every living person and/or legal entity is presumed to have the capacity to contract unless limited or excluded due to age or other factors. It is important to remember that generally, only persons over the age of 18 have the full contractual capacity in terms of South African law. Persons under the age of 18 are referred to as minors and must be assisted or represented by a legal guardian.
  4. The agreement must be legal and lawful in order to be valid. If it is against the law, it will not be legally enforceable.
  5. The content of the agreement must be certain, and the agreement must have fixed and definite conditions.
  6. The obligations must be capable of performance, or else it will not be legally valid.
  7. All necessary formalities must be observed if concluded. Generally, there are no prescribed formalities for the conclusion of a contract, unless a specific law determines otherwise, such as for property sales which requires everything to be reduced to writing and signed by both parties.

If these requirements are met, a valid contract will be created. If we then assess the communications with the photographer, it does appear from what was said, that the necessary intention to conclude a contract was not there and that the person was merely obtaining information.

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