NOTIFICATION OF ACCEPTANCE AND THE CONCLUSION OF A CONTRACT Withok Small Farms (Pty) Ltd v Amber Sunrise Properties 5 (Pty) Ltd 2009 2 SA 504 (SCA)

Abstract

It is a long-standing principle in our law that generally a contract is only concluded when the offeree notifies the offeror of acceptance and, consequently no contract arises if there is no notification of acceptance. This general rule is derived from the will theory, which requires not only coinciding expressions of intention (usually styled “offer” and “acceptance”), but also knowledge of the offeree’s acceptance by the offeror so that conscious agreement exists between the parties (consensus ad idem). However, the offeror may expressly or impliedly dispense with this requirement, since the offeror may prescribe the method by which his offer may be accepted by the offeree. It also seems that where there is doubt, “the presumption that the contract will be completed when the offeror comes to hear of the offeree’s acceptance, should prevail”. In the recent matter of Withok Small Farms (Pty) Ltd v Amber Sunrise Properties 5 (Pty) Ltd (2009 2 SA 504 (SCA)) the Supreme Court of Appeal had to decide the very issue of whether the offeror had dispensed with notification of acceptance by the offeree. The context in which the court had to decide this issue and the approach adopted raise some interesting issues for discussion.