LEGAL MATTERS: Concluding contracts via e-mail, social media (II)

LAST week, I discussed whether a contract can be validly concluded through email exchanges. This week I will deal with whether contracts can be concluded via social media platforms such as WhatsApp and Facebook.
Social media refers to any website and application that allows its users to quickly share information with the public. Social media contracts are the result of burgeoning platforms that are primed to make communication convenient and inexpensive. One such popular platform is Facebook

Marketplace where users of the Facebook website place advertisements for items that they no longer want and wish to sell. Multiple informal contracts of sale are concluded here when the buyer contacts the seller, and the item is sold.

Validity of contract
Whatever the platform may be, the requirements for a valid contract remain the same. They are that there should be an offer and acceptance between two or more parties; consensus or “the meeting of minds” on the terms of the contract; intention to abide by the obligations of the contract; contractual capacity to act; formalities in certain instances; and that the contract must be legal/lawful in Zimbabwe.

Advantages of social media contracts
With the ease of communication that social media brings, it is much easier to enter informal contracts for the sale and exchange of low to medium value good and services. This is not to say, however, that social media contract cannot have a serious or high-value subject. This aspect was dealt with in the South African case of Kgopana v Matlala, which I will detail below.

Unfortunately, with people able to contract with others over social media, there is no way to ensure that the requirements for the conclusion of a valid contract (consensus, capacity, formalities, legality, possibility and certainty) were met, which can have far reaching consequences should there be a breach and the aggrieved party decides to enter into litigation to remedy the breach.

It is particularly difficult to identify the agreed terms of the contract. Each term must be specifically agreed to show that the parties are in agreement as to what should be done and how. Also, parties to a contract who wish to avoid the enforcement of a certain term in the contract must demonstrate good reason for failing to comply with the term. This means that once a term is accepted between the parties and the term is a valid one, the parties are bound by it.

In Kgopana v Matlala, the South African Supreme Court had to determine whether an agreement that was concluded via social media would qualify as a valid and enforceable contract. Kgopana won over R20 million in the National Lottery. He sent a message via WhatsApp in early 2016 to Matlala, who is the mother of one of his seven children, indicating that he will pay R1 million to each of his seven children. This message became the subject of the dispute, which led to the matter being heard in court as Matlala argued that in Kgopana sending a message to her indicating that he will pay a sum of money to each of his children, he is obligated to do so as a contract was concluded when that message was sent to her as she had accepted the offer.

During the initial trial in the High Court, Kgopana argued that he had no intention of making an offer and that he did not intend to ever make any payment to Matlala for the benefit of the minor child. He therefore, argued that he had no animus contrahendi (animus contrahendi is the intention to contract or the serious intention to create legally binding obligations). Kgopana advised that he only sent the message to Matlala for her to leave him alone. The High Court held that the content of the message was clear and determined and that it constituted an offer, which was accepted by Matlala. The High Court further held that there was an intention on Kgopana’s part to pay the money to Matlala and for this reason, a valid and enforceable contract came into force.

In the subsequent appeal, the Supreme Court of Appeal confirmed that the primary basis of contractual liability is the meeting of the minds of the parties to the agreement. However, in cases where one of the parties is disputing that there was ever a valid contract that came into being, and that there is no contractual liability on their part to act in accordance with the obligations created, there may yet be contractual liability. The first party may yet be contractually bound to the agreement if they led the other party to believe that they intended to contract and be bound by the terms mentioned.

The court decided that in the matter at hand, Kgopana never intended to pay the R1 million to Matlala as he initially denied having received the money from the National Lottery, and that the message he sent to Matlala was in response to a statement he received that indicated he had won the money. The message also set out what Kgopana theoretically would do should he receive the winnings and did not contain an offer that could later be turned into an agreement, should it be accepted, that is of any legal force that would see Kgopana be obligated to hand over the money.

Kgopana at no point ever had the intention of being bound by the message because he never intended to pay the money to Matlala. The message sent will always have to be scrutinised first and cannot be taken at face value to be binding and enforceable. The person who initially made the suggestion or offer that the other person accepted to be their intention to be bound by it, may change their mind at a later stage and then very easily deny that they ever had any intention of being bound by the agreement.

This is what makes contracting over social media so difficult because the tone of voice someone uses when entering into an agreement or their body language, which can be used to determine whether they are serious about being bound by the agreement is lost. So much of what is “said” over social media messaging is lost in translation as the person who is reading the message may ascribe their own meaning to the message which the sender may not have intended. With all these factors influencing messages, it is quite possible that the reader of the message may mistakenly interpret it to mean that there is an agreement and that corresponding obligations will be created as a result, even though the writer may not have intended for there to be any legally enforceable obligations to be created.

People need to think more carefully before they send messages, and if negotiations are undertaken over social media, qualifying questions need to be asked in terms of what the specific terms and obligations are. Nothing should be assumed and, in asking more questions, certainty is ensured — both parties will be on the same page, minimising the risk of misunderstanding and mistake.

Muza is a duly admitted lawyer with expertise in business law, labour law and commercial litigation. He writes in his personal capacity. For feedback, email him at hilarykmuza@gmail.com or call on +263719042628.