“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 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 unequivocal; the offer is accepted by the person to whom it was addressed; the acceptance is in response to the offer; and the acceptance complies with set formalities (if any).
Considering the endless variety of announcements, advertisements and other forms of promotion and communication encountered daily on social media platforms, it is not easy to establish when an offer has been made and accepted to establish a binding contract. In a recent South African case, a sporting club announced the extension of one of its players’ contracts for the next season on social media. However at the end of the season, the contract was not extended. Our courts held that the mere announcement of the extension by the club on social media did not constitute a contract of employment, as there were other formalities the club required to be complied with before a contract extension was valid. In addition, the fact that the club had made an announcement on social media that the player’s contract had been extended did not meet the requirements of a ‘data message’ that concluded an agreement in terms of the ECT Act. The announcement by the club therefore did not constitute a valid offer which could be accepted and did not create an enforceable contract.
In your case however it could be argued that the Facebook post created a general invitation to the public to contract, but that a valid contract came into existence once you and the breeder had through messaging established the details of the offer, and which were accepted by the parties to create a binding electronic contract. However, as you can see from the above, each case must be considered on its own merits and the detail of your communications with the breeder will hold the key as to whether there are sufficient grounds confirming the existence of a valid contract and which meets the requirements set out above.