An SMS is a binding contract

[The_Pumpkin_King]

The Labour Court case in Jafta v Ezemvelo KZN wildlife recently decided that an acceptance of an offer by way of short message service (SMS) or e-mail results in a binding contract.



The court was called on to decide whether or not an SMS is a valid method of concluding a contract. The court had regard to the Electronic Communication and Transaction Act 2002 which says that contracts can be concluded effectively by electronic communications.



An electronic communication is a communication by means of data messages. A data message is data generated, sent, received or stored by electronic means. The court ruled that an SMS is a data message and it therefore falls within the definition of an electronic communication. Therefore an SMS is a valid and effective means of concluding a contract. The court was at pains to point out that the fact that message or document is digital and not hard copy does not detract from its legal weight.



Given this fact, it is essential that we keep track of all digital communications sent out. Records should be kept of emails and SMS’s so that they can be referred to should the need arise, in the same way we keep track of any other correspondence.



This decision emphasises that digital methods of communication are legally on par with their paper counterparts

Sources of reference Business Day 10 November 08

 

[Arthur]

At common law, all that is required for a valid and binding contract is offer and acceptance. It matters not a jot how those intentions are communicated. Legislation provides that certain types of contracts have to be in writing (offers for sale or purchase of land, hire-purchase/lease agreements, mortgage bonds, wills, and so forth), but for regular everyday contracts all that is needed is a clear offer and a clear acceptance. It's a good idea, but not a legal requirement other than where stipulated by legislation, to reduce certain contracts to writing, because in the event of a dispute the written agreement can be produced as evidence of the contract and its terms. But unwritten, verbal or tacit agreements are still valid and binding, just harder to prove in court.

 

[blunomore]

The issue is always being able to prove an agreement in case of dispute, which is obviously easier to do if it is reduced to writing.

 

[PeterCH]

The contract has also to be legal according to the law of the land, for instance a contract for sales of slaves will not be valid, even if SMSes are
ruled legal ways of conducting contracts in general.