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39 Cards in this Set
- Front
- Back
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What are the requirements that must be met for a contract to be binding by the law? |
1. Parties must have serious intention to contract 2. Parties must communicate their intention to each other 3. The parties must have contractual capacity 4. Parties must be of same mind; no misunderstandings 5. Agreement must be lawful 6. Performance of contractual obligations must be possible 7. Agreement must comply with formalities 8. Agreement must be certain in its terms |
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Define what an offer is |
An offer js a proposal made by one party to another -which contains terms and conditions -that binds them contractually if accepted by the other person |
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What is the offer and acceptance equation? |
Valid offer + valid acceptance = valid contract |
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What are the requirements for an offer to be valid? |
1. It must be made with serious intention of creating a binding and legal contract 2. Must be complete and clear 3. Must still be in existence at the time that it is accepted |
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What are not normally valid offers? |
-offers made in jest -social arrangements |
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What does a valid binding offer depend on? |
-circumstances -wording -how a reasonable person would interpret it |
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Explain how bait marketing is regarded in adverts under the CPA? |
According to section 30 of the CPA: -if a supplier advertises goods ot services at a certain price then they must ensure that there are sufficient goods or services available at that price for consumers who respond to the advert. Unless advert is worded like “while stocks last” |
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Explain the second requirement of a valid offer: “it must be complete and clear” |
The offer must contain at least the essential terms of the contract, so that an unconditional acceptance can bring about a binding contract. |
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Explain the second requirement of a valid offer: “it must be complete and clear” |
The offer must contain at least the essential terms of the contract, so that an unconditional acceptance can bring about a binding contract. |
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Explain the third requirement of a valid offer: “it must still be in existence at the time it is accepted” |
An acceptance subject to conditions (yes but) is not an acceptance at all. Rather it is a rejection and a counter-offer which causes the original offer to end. The counter-offer can then be accepted or rejected. 1. Revocation (cancellation) 2. Lapse of offer 3. Rejection |
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What are the five requirements for a valid acceptance of a offer? |
1. The acceptance must be made by the particular person to whom the offer was addressed 2. The acceptance must be made “knowingly” 3. Acceptance must be clear and unconditional 4. The acceptance must be communicated to the offeror in the prescribed manner. 5. It must be made before the offer comes to an end. |
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When is a valid contract created? |
It is created at the time and place that acceptance is communicated. |
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Explain the information theory? |
In terms of the information theory, acceptance is only valid and the contract concluded once it has been communicated to the offeror. The contract is therefore concluded at the time and place where the acceptance comes to the attention of the offeror. So the offeror must actually receive it, see it or hear it. |
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What does the information theory apply to? |
Applies to phone, fax and in person face to face. |
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What is the default position in determining at what point acceptance is taken to have been communicated to the offeror? |
The general rule is to use the information theory if other theories don’t apply. So offeror must actually receive, see or hear it for valid contract to come into existence. |
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What is the default position in determining at what point acceptance is taken to have been communicated to the offeror? |
The general rule is to use the information theory if other theories don’t apply. So offeror must actually receive, see or hear it for valid contract to come into existence. |
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Explain the expedition theory: |
If offeror accepts by post, the acceptance takes place and the contract is concluded at the time and place where the letter of acceptance is posted. |
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When does the expedition theory apply? |
It applies where the offeror: -makes offer via post -authorises acceptance by post |
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What is ECTA? |
Electronic Communications and Transactions Act of 2002 |
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Where does ECTA apply? |
It applies to contracts made via email or other kinds of electronic communication such as sms, whatsapp. |
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When is a contract concluded in terms of ECTA? |
A contract is concluded at the time and place where the acceptance is received by the offeror. |
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When is acceptance regarded as being received by the offeror in terms of ECTA? |
An electronic message is received by the offeror when the complete data message enters his information system and is capable of being retrieved and processed by them. |
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What is ECTA? |
Electronic Communications and Transactions Act of 2002 |
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Where does ECTA apply? |
It applies to contracts made via email or other kinds of electronic communication such as sms, whatsapp. |
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When is a contract concluded in terms of ECTA? |
A contract is concluded at the time and place where the acceptance is received by the offeror. |
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When is acceptance regarded as being received by the offeror in terms of ECTA? |
An electronic message is received by the offeror when the complete data message enters his information system and is capable of being retrieved and processed by them.
So contract is concluded where message is sitting in offeror’s inbox even if he hasnt checked it. |
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Does the information theory and reception theory apply to fax and why? |
No. “Communicated” with fax means that the offeror has actually read the fax. It is not communicated when it is just sitting in the fax machine. |
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What is the default theory? |
Information theory if the expedition and reception theories dont apply |
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How can an offeror also stipulate when a contract will be concluded? |
The offeror may stipulate that the contract will only be concluded and valid once he has read it. |
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What is a supplier (CPA) |
Any person who offers goods and services for sale, hire or exchange on the web in the ordinary course of business. |
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What is a consumer |
Any natural persons, ECTA act does not include juristic persons - COMMON LAW APPLIES TO JURISTIC PERSONS |
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What are the consumer’s rights in terms of section 44 of ECTA |
-cancellation does not amount to breach |
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What is a supplier (CPA) |
Any person who offers goods and services for sale, hire or exchange on the web in the ordinary course of business. |
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What is a consumer |
Any natural persons, ECTA act does not include juristic persons - COMMON LAW APPLIES TO JURISTIC PERSONS |
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What are the consumer’s rights in terms of section 44 of ECTA |
-cancellation does not amount to breach |
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In terms of ECTA, when can a consumer return goods? |
In an electronic contract for the supply of goods, consumer can cancel within 7 days after the date of the receipt of the goods. |
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In terms of ECTA, when can a consumer return goods? |
In an electronic contract for the supply of goods, consumer can cancel within 7 days after the date of the receipt of the goods. |
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What are consumers rights in terms of ECTA in cancelling a service electronically ? |
In an electronic contract for the supply of services, the consumer can cancel within 7 days after the conclusion of the contract. |
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What does section 17 of CPA not apply to? |
It does not apply to special order goods (personalised goods) Cancellation will amount to breach |
