CHALLENGING OLD PERCEPTIONS ― THE CLASSIFICATION OF WEBSITE ADVERTISEMENTS ACCORDING TO SOUTH AFRICAN CONTRACT LAW

Abstract

South African law draws a distinction between offers and invitations to treat. Although the intention with which a statement is made is usually cited as a controlling factor in determining its proper classification, there are a few cases in which the classification of a declaration into either an offer or an invitation to treat is done by rules of law with very little concern for the intention of a party. Such is traditionally the case amongst others with advertisements and displays of goods on windows or shelves in a self-service store. The classification of these scenarios into invitations to treat is usually premised on certain perceptions at common law, such as the need to protect traders from the risk of inundation by purchase orders, and the right of traders to select their customers. With electronic commerce on the rise, tradesmen today prefer to advertise their goods and services online through websites. Some of these websites go beyond traditional advertising. They can finalize sale transactions, and even perform contracts without any human review on their side. These novel features in trading websites challenge the old conceptions of the common law of contract concerning the proper classification of advertisements and self-service stores. Hence the question arises whether a typical model of a modern trading website constitutes an offer or an invitation to treat. In light of the foresaid technological developments, it is important in the digital age to reconsider the position of the law, and to develop it where necessary with a view to accommodating electronic contracts.