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How binding is a social media
announcement?

June 2017

“I recently responded to a Facebook post of a breeder selling
puppies. I messaged the breeder, indicating that I wanted one
of the puppies and would pay the price. We communicated
through Facebook and agreed on a date for me to pick up
the puppy and pay the price in cash. When I went to pick up Commercial
the puppy, the breeder told me that all the puppies had been
sold. He said that because there was no contract and we were
just messaging he had sold it to someone else on a first come
basis. Surely he couldn’t just sell the puppy to someone else?”

We live in a time when the bulk of our communication is electronic. This
holds implications for important aspects like contracting and raises
difficult questions as to when contracts come into existence and become
enforceable.
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 aforementioned 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.

Because contracting in the electronic environment is more complex than
on paper, 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
what is being offered - namely what is being sold; who is selling the item;
at what price; conditions to the sale or item; etc. 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

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