There are many ways to enter into a contract

In a world of multiplying ways of communicating, new ways of entering into contracts attract widespread attention.

But there have always been endless ways of entering into contracts which are binding unless the law or the parties restrict the method, for instance by requiring it to be in writing.

The most recent example comes from Uganda where the court examined the question whether a WhatsApp exchange amounted to a contract and, if so, whether it was a written contract as required by Ugandan law.

The court had no difficulty in finding that the words exchanged by the parties on WhatsApp amounted to a contract. The contract was in writing because under Ugandan law a contract is “in writing” if it is in the form of a data message.

In SA a similar result was reached in 2014 where the appellate court found that an email exchange amounted to a contract. The acceptance of an emailed offer by an email signed “Kind Regards Greg” concluded a signed agreement. The signature was valid under the Electronic Communications Act because the contract was reduced to writing in the form of emails and signed electronically.

The other interesting thing about this decision is that the parties had stipulated that an amendment to their contract must be in writing and signed by the parties. The emails were sufficient for that purpose.

A recent Canadian case found that a thumbs-up emoji meant that the person sending it was officially entering into a contract. The judge called this a “new reality in Canadian society”. Emojis may be new but the principle is not.

There is no magic in a signature. Sometimes an X will suffice. Most signatures are illegible. Millions of contracts are entered into by the click of a mouse or the conduct of the parties. You can buy a loaf of bread instantly by placing the bread and money in front of the shopkeeper without saying a word. A mere nod at an auction may be enough.

Entering into a contract with a chatbot is possible.

Currently the chatbot would be seen as the agency used by one party to create the transaction. Things may change when generative AI does its own thing, but that is another debate.

Thanks to an unfortunate Mr Bloom, everyone who studies contract law remembers that contracts are a matter of offer and acceptance. When a Cape Town city jewellery store was robbed in 1913, the owner offered a £500 reward in a newspaper advertisement to anyone who gave information to the police which would “lead to the arrest of the thieves and the recovery of the diamond jewellery, etc”. Mr Bloom gave information to the police which led to convictions and recovery of the jewellery.

Unkindly, the jeweller successfully resisted Mr Bloom’s claim for £500 and succeeded on the basis that, when Mr Bloom provided the information that led to the recovery of the jewellery, he had not read the newspaper advertisement so he could not claim under any contract. There was no offer and acceptance.

Sometimes it works better in favour of the lucky party. A man who won a piece of land in a competition defeated the defence that there was no written contract because that requirement only applies to the sale, exchange or donation of land but not to winning a competition. He got his land.

As long as a party has an intention to contract, expresses that intention in any one of a multitude of ways, and the other party accepts the offer (not necessarily in any formal exchange), you may have a binding contract.

The Constitutional Court has upheld the Roman law principle that a contract seriously and deliberately entered into will be enforced by the courts. The principles of how to contract have no limits except as the law or the parties themselves impose on them.

We all have to be careful where we place our words, clicks, images or gestures.

THERE IS NO MAGIC IN A SIGNATURE. SOMETIMES AN X WILL SUFFICE. MOST SIGNATURES ARE ILLEGIBLE