Hilary Muza 
Entering into contractual agreements in commerce and in our everyday lives always revolves around the same key principles. 
These are that there should be an offer and acceptance between two or more parties; consensus or “a meeting of the 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.
The norm has always been that to conclude a contract, the parties thereto should sign the same document or, even better be in the same room when the contract is agreed to. However, with advancing technology it is no longer necessary to be in the same physical space for you to conclude a valid contract.
This two-part series deals with contracts entered into via e-mail and social media and I will be interrogating whether or not these are valid and enforceable in Zimbabwe.
The question of whether or not a series of emails constitutes a valid contract was dealt with in the English case of Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another. In this case, the court was asked whether a contract of guarantee was enforceable where the agreement was contained not in a single email or document signed by the guarantor, but in a series of documents and emails duly authenticated by the signature of the guarantor. It is the norm in commercial transactions for a contract to be contained in a single document, and it was no doubt convenient that a guarantee should be evidenced in this way.
The question that arose in this case was whether an agreement must necessarily be contained in a single document and whether the conclusion of the agreement by email is valid. The England and Wales Court of Appeal held that what is required in a contract of guarantee is that it be in writing and that it be signed by the guarantor.
Having made this finding, the Court went on to hold that a contract concluded via email is valid and, further, that a contract does not have to be a single document but a series so long as they are all signed by the parties and show their intention to contract. If the requirements for a valid contract are met, then that contract is binding on the parties.
As a matter of fact, conclusion of commercial contracts by an exchange of emails in which the terms agreed at an early stage are not repeated later in the course of correspondence, is far from unusual. It is also not a new phenomenon. It was not so long ago that you could substitute a fax for an email.
The judge in the Golden Ocean Group Ltd case stated that it is, “highly-desirable that the law should give effect to agreements made by a series of e-mail communications which follow, more clearly than many negotiations between men of business, the sequence of offer, counter-offer, and final acceptance, by which, classically, the law determines whether a contract has been made.”
As long as the basic building blocks can be established through an email trail, then a contract is validly concluded and evidenced by the emails, even if they are more than a single document. It is important to note that with any rule there is an exception. In the case of concluding contracts via e-mail, such an agreement can only be valid where there is no provision in place that specifically excludes e-mail exchanges as constituting an agreement, an addendum or other variation to an agreement.
For instance, if a contract provides that variation shall only be in writing and signed by both parties, and further provides for a definition of “writing” to exclude e-mail exchanges, then there can be no variation through e-mail correspondence. It is always a wise decision as a contracting party to include variation provisions that best suit and protect one’s interests.
For example, where the parties are not in the same jurisdiction, the strategic question of whether or not to make variation of the contracts as easy as an e-mail exchange speaks to preservation of costs and time in travelling and/or sending documents between the parties.
It also speaks to whether one of the contracting parties needs to make certain observations in person before a variation can be agreed to. It all depends on the level of protection that the contracting party requires so clauses of this nature should not be taken lightly.
In the 2015 South African case of Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and Another, the question of variation of a contract by email where it was agreed that variation would be in writing was discussed. The agreement read, “no variation…or agreement to cancel shall be of any force and effect unless in writing and signed by both parties.”
The Supreme Court accepted that the agreement could be varied via email because the signatures at the end of the emails intended to serve as signatures, and that they constituted “data”, which was logically associated with the data in the body of the emails; and lastly, they identified the parties.
This position was in line with the requirements of the Electronic Communications and Transactions Act 25 of 2002, which provides that an email signature is sufficient to identify an individual for the purposes of concluding an electronic transaction.
A similar provision was proposed in the Electronic Transactions and Electronic Commerce Bill, 2013 which provided that “[w]here electronic communications are used in the formation of a contract, that contract shall not be denied legal effect, validity or enforceability on the sole ground that an electronic communication was used to make an offer or to accept an offer for that purpose.”
This Bill, to my knowledge, is yet to be enacted as an Act of Parliament, meaning that it can be argued that the position in the Spring Forest Trading CC case does not strictly apply in Zimbabwe although it is in my view, a compelling case to make depending on the circumstances.
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.
