Author: Maryna Botha – STBB
A USEFUL TIP WHEN TO-ING AND FRO-ING TO NEGOTIATE A DEAL
We all know that our law requires that there must be consensus regarding all material terms for a valid agreement to come into effect.
But consider this: Jack makes a written offer to purchase John’s property. John accepts the offer, but at the time of signing, makes some alterations to the document in line with his sale requirements. Can it be said that there is a valid agreement in place?
A similar set of facts presented in the judgment of Cooper v Clark, where the Court referred to two previous SCA judgments. The one concluded that where such change amounts to a material alteration of the contractual terms, it constitutes a counter offer and that until accepted, is unenforceable. The other emphasized that conditional acceptance of an offer does not constitute a contract, but rather a counter offer and would only become a binding contract on acceptance of the alterations.
Clearly any material alteration to a document made by one party after the other has signed, must be accepted by the latter to be enforceable. Make sure that when negotiating a transaction, the written document reflects all the terms of the parties’ agreement and if there are amendments, that each party’s signature is obtained in respect thereof.
For legal assistance in any transaction, contact STBB.