Page 27 - Q&A

Can a contract be formed
through a WhatsApp message?

January 2020
“I found a photographer online who could take our wedding photos. We started
communicating on WhatsApp and she confirmed she was available and gave
me her prices which I confirmed looked reasonable. I never told her that I would
use her and eventually found someone else. When I informed her that I would
not use her, she just replied that we had an agreement and she would claim her
fees from me if I did not honour our agreement. Surely, just talking on WhatsApp Commercial
can’t create a contract?”

Before the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”)
came into effect, there was legal uncertainty as to whether a data message sent
electronically (such as WhatsApp message) could be sufficient to enter into a
valid contract. One of the main areas of uncertainty was whether electronic
communication could, and should, impose legal obligations on people and
whether this form of communication was sufficient to communicate an intention
to enter into a legally binding agreement.

This uncertainty was resolved by ECTA which expressly recognises data messages
as a viable method to conclude legally binding agreements. This means that
data messages are now a recognised method to engage in actions that give
rise to legal obligations, which includes the possibility of concluding electronic
contracts by way of data messages sent for example via WhatsApp.
That said, for an electronic message to impose legal obligations, the normal
requirements for a binding contract must still be met. In South Africa, the
following must be present for a contract to be binding on parties, even
via WhatsApp:
1. There must be a valid offer and acceptance. An offer is made when a
person puts forward a proposal with the intention that upon acceptance
of the proposal, a binding contract is created. The intention to make an
offer and the acceptance of the offer can either be expressed or implied
from the conduct of the parties. However, if the offeror does not intend to be
bound by the acceptance of her offer, the necessary intention to create a
binding contract may be lacking. The acceptance of the offer in question
may be communicated by direct, or indirect means but must be capable
of being inferred from an unambiguous act which indicates acceptance.
For example, a facial expression (such as a smile) will not be sufficient to
indicate acceptance, but signing an agreement will be a clear indication
of acceptance of the terms of the agreement. Furthermore, acceptance
of an offer must be in relation to the offer in its entirety, as anything more
or less than what was offered (including acceptance together with a
reservation) may amount to a counteroffer which the offeror then has the
option to accept or decline.

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