Proof of Contract
South African contract law is “essentially a modernized version of the Roman-Dutch law of contract“, and is rooted in canon and Roman laws. In the broadest definition, a contract is an agreement two or more parties enter into with the serious intention of creating a legal obligation.[1]
In practice attorneys come across contractual disputes where a party will dispute the conclusion of a contract to avoid the consequences of same if it were to be upheld. To establish the existence of the contract the attorney with his or her client will look to the following:
Two or more parties
A person cannot contract with him or herself alone, there must be the consent of two or more parties.
although the general application that there must be two or more parties is with the exception of cases where one person is acting in different capacities (Self Seal Labels CC v Aiken and Peat 1994 2 PH A44.
True agreement
In a dispute pertaining to the existence or not of an agreement the courts will have regard to the external facts and circumstances which reflect the manifestation of the parties’ minds to ascertain whether or not the parties to the contract had a meeting of the minds.
In the result it is correct to say that to decide whether a contract exists one looks first for the true agreement of two or more parties, and because such agreement can only be revealed by external manifestations one’s approach must of necessity be generally objective.[2]
Quasi mutual assent
In modern Roman-Dutch law of South Africa a contract may be defined as: An Agreement, (arising either from true or quasi-mutual assent) which is or is intended to be enforceable by law. [3]
This is a generally objective approach whereby the subjective state of a person’s mind is ascertained by external manifestations.
The following popular statement has often been repeated in respect of the doctrine of quasi-mutual assent adopted from English law of contract “If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”[4]
Offer and Acceptance in ascertaining agreement
The existence of a contract is normally ascertained by looking for an offer and acceptance. Although there are exceptional circumstances in which a contract can be concluded in the absence of an offer and acceptance.
South African case law provides ‘a binding contract is as a rule constituted by the acceptance of an offer’[5]
Time and place of contracting
On analyzing the offer and acceptance one will ordinarily wish to determine the place and time of conclusion of the agreement.
Generally, an agreement is reached when the offeror receives communication of the offer is accepted.
Analysing the Offer of a Contract
As stated above the existence of a contract is normally ascertained by analysing an offer and the acceptance.
The offer carries with it the intention to be legally bound on acceptance by the offeree.
If the person making the offer lacks this intention, they are said to be lacking animus contrahendi.
Examples of offers lacking animus contrahendi are offers which are vague or impersonal. [6]
It may also become necessary in determining the existence of a contract in the context of the offer to:
– analyse the wording and communications of negotiations which are not necessarily intended as binding offers but are preliminary in nature.
– consider the lapsing of an offer by death, time, rejection, counteroffer, revocation, withdrawal etc.
Analysing the Acceptance of a Contract
Generally, there is no contract until an offer has been accepted by the person to which the offer was made and the offeree must have knowledge of the offer. The offerees acceptance must also be unequivocal and align with the offer made.
Further one must also consider the manner in which an offeree communicated their acceptance. The mode of communication may also be considered to ascertain the time at which the contract was concluded.
Should you require assistance in matters addressing Contract Law Boogaard Attorneys can service Clients throughout South Africa remotely and can accommodate on site visits at our practice in Fourways or attend to client in various areas in Johannesburg North including Bryanston, Dainfern, Morningside, Midrand, Rivonia and Sandton to name a few.
Further we also assist in the drafting, reviewing and advice in a wide range of business related contracts, forms and documentation including those pertaining to Access to Information, Acknowledgments of Debt, Advertising, Agency and Representation, Carriers, Cessions, Companies, Information Technology Contracts, Consumer Protection, Employment, Employee Management, Franchising, Indemnities, Joint Ventures, Novation, Partnerships, Pledge, Sale of Movable and Immovable Property, Sale of Business Suretyship & Vehicle Management.
Contact Lisa Boogaard on 0721164121 or email her on lisa@bgdattorneys.co.za