Social media and the enforceability of contracts
In this day and age, it is rare to find a person not using at least one of the many social media platforms available. Whether it is WhatsApp, Facebook, Twitter or LinkedIn, the modernised world we live in today enables instant access to information and with that, instant messaging services on these social media platforms become a common place for parties to transact.
In light of this, many people are using these social media platforms to negotiate a number of transactions and the question which arises is whether the exchange of these messages can be recognised in our law as enforceable contracts.
In South Africa and as a general rule, there are no prescribed legislative formalities for the conclusion of a contract. All that our common law requires for a contract to be valid is for there to be (i) an offer and acceptance between two or more parties; (ii) consensus or “the meeting of the minds” on the terms of the contract; (iii) intention to abide by the obligations of the contract; (iv) contractual capacity to act; (v) formalities in certain instances; and (vi) that the contract must be legal/lawful in South Africa.
In December last year, our Supreme Court of Appeal (SCA) (in Kgopana v Matlala (1081/2018) [2019] ZASCA 174 (2 December 2019)) was required to determine whether a WhatsApp message sent by a man to the mother of one of his children constituted a valid and enforceable contract. In the WhatsApp message, the man indicated that he would pay each of his children R1 million if he won the national lotto. When the appellant (the mother of the man’s child) found out that he had in actual fact won R20 814 582,00 in the national lotto, she relied on the WhatsApp message as an enforceable contract and claimed payment of the R1 million for her minor child.
Ultimately, the SCA held that the WhatsApp message did not contain an offer that could on acceptance thereof be converted into an enforceable agreement. The SCA held that the appellant subjectively had no intention to contract and the message did not suggest otherwise. Although the SCA in this matter ruled that a contract was not enforceable, WhatsApp and other social media platforms used as instant messaging forums can, and do, give rise to valid and enforceable contracts in certain instances. The same can be said if parties exchange emails.
It goes without saying that when using these platforms (and even email), it is necessary to exercise caution when doing so as your discussions with another party could potentially give rise to a binding legal obligation.