Theme 2 Pt 1 Continued 2 Flashcards
WHAT IS AN ACCEPTANCE?
1) A clear and unambiguous declaration of intention by the offeree unequivocally assenting to all the terms of the offer.
2) Intention to accept must be express (e.g. “I accept”/signature) or tacitly indicated (e.g. a nod).
3)Consensus reached
THE ACCEPTANCE MUST BE UNQUALIFIED:
1) Complete and unequivocal assent to every element of the offer.
2) If acceptance is conditional/contains new terms/leaves out original terms
3) If clear acceptance and no consensus has been reached, Therefore a valid contract has not been
concluded
REQUIREMENTS FOR A VALID
ACCEPTANCE
1) The acceptance must be UNQUALIFIED.
2) The acceptance must be MADE BY THE PERSON WHOM THE OFFER
WAS MADE TO.
3) The acceptance must be a CONSCIOUS RESPONSE TO AN OFFER.
4) The acceptance must be in the FORM PRESCRIBED by the offeror.
THE ACCEPTANCE MUST BE MADE BY THE PERSON TO WHOM THE OFFER WAS MADE:
1) Specific person, class of persons…
2) Cession: Possible under option?
If yes, the personal right to accept may be ceded to the cessionary.
Bird v Summerville and Another
1) Where a prospective seller makes an offer to a specific person
2) Without intending to make an offer which could be accepted by anyone at all,
3) The offer is accepted by such person and another as joint purchasers, there is no concluded contract of sale
THE ACCEPTANCE MUST BE IN THE FORM
PRESCRIBED BY THE OFFEROR:
1) Offeror is entitled to prescribe any method of acceptance as she sees fit.
2) If the offeror does so, no other form of acceptance will suffice.
3) Offeror may, however, authorise a particular method of acceptance without thereby intending to prescribe it as the only acceptable method
Declaration theory
1) Contract comes into being at the place where and the time when, the offeree expresses acceptance.
2) i.e. Where the offeree has declared his acceptance (e.g.
where the acceptance was written/ signed).
Reception theory
1) The contract comes into being at the place where and the time when the letter of acceptance was received.
Expedition Theory
1) Contract comes into being at the place where and the time when the letter of acceptance was posted
Information/ communication
theory
1) General rule for South Africa
2) GR: Contract comes into being ONLY when the acceptance is communicated to the mind of the offeror.
3) Exceptions:
3.1) Offeror stipulates a different method
(Express/Implied)
3.2) postal contracts
3.3) electronic contracts.
Post/telegram= Expedition theory
1) If an offer permits or requires acceptance to be by posted letter or telegram.
2) Then a contract is concluded when and where a valid acceptance is posted or
telegraphed
Telephone/fax=Information/
communication theory
That a contract comes into effect at the time when and place where the offeror
learns of the acceptance
e-mail and SMS or other means
of electronic communication
Reception theory
1) Electronic Communications and Transactions Act 25 of 2002
2) Data message is regarded as having being received by the offeror at his or her usual place of business/residence when the complete data message enters an information system designated or used for that purpose by the offeror and is capable of being retrieved and processed
3) S23 (b)-(c), NB: See also s 22(2).
Cape Explosive Works Ltd v SA Oil & Fat Industries Ltd
1) For contracts concluded by post, South African courts apply the expedition theory as an exception to the information theory
2) The expedition theory holds that a contract concluded by post is formed when and where the offeree posts the letter of acceptance
Exceptions: Theory applies only when the following circumstances are present:
1) Offer is made by post
2) Postal services are operating normally,
3) Offeror has not indicated a contrary intention(Expressly/tacitly)
4) The contract is a commercial one
