the parties. A counter-offer does not form a contract,147 as the acceptance must mirror
the offer.148 The offeree should adhere to the mode of acceptance which has been
prescribed by the offeror.149 The cardinal principle is that an offer made to a specific
person can be accepted only by that person.150 In the case of Bloom v American
Swiss Watch, the court pronounced that the offeree must be in full knowledge of the
offer.151
2.3.3 Formalities for the conclusion of a contract
The common law requires no formalities for concluding an enforceable contract, 152
such that any contract, subject to statutory exceptions, may be verbally entered into in
accordance with Goldblatt v Fremantle153 where the burden of an oral agreement was
discharged by evidence led before court. However, it may be difficult to discharge the
burden of proof for an oral agreement,154 vis-à-vis proof of a written contract of which
reference is made to signature and the contents of the document.155
The words
applied by parties in their contract bear ordinary meaning, unless the meaning leads
to absurdity when read in context.156 The justification for prescribing formalities is to
ensure reliable evidence of the terms of the contract.157
In principle, a contract and its terms are determined by the parties by actual agreement
or by reliance in the presence of agreement, that is, formalities are self-imposed by
the parties.158
Nonetheless, the law may imply formalities as a matter of course
without reference to the actual intention or conduct of the parties, such provisions are
called naturalia of the contract.159 In the case of Clements v Simpson,160 the court
147
Christie, RH. (1996) “Digest on the Law of Contract” 21; Hutchison, D et al. (2012) “The law of contract in
South Africa” 2 nd ed, 55.
148 Van der Merwe (2008: 147-148).
149 Drift Properties (Pty) Ltd v Mc Lean 1971 (3) SA 591; Laws v Rutherford 1924 Ad 261 at 264.
150 Christie (2001: 64).
151 Bloom v The American Swiss Watch Company 1915 AD 100.
152 Woods v Waters 1921 AD 303 at 305.
153 Goldblatt v Fremantle 1920 AD 123 at 128.
154 Lordan v Pelunsky and Mervis 1925 OPD 18 at 19.
155 Mans v Union Meat Co 1919 AD 268 at 271.
156 Cornelius, CJ. (2002) “The principles of interpretation of contra cts in South Africa” 169.
157 Christie (2001: 24).
158 Van der Merwe (2003: 256); Sentrale Ko-op Graanmpy Bpk v Shifren 1964 (4) SA 760.
159 Van der Merwe (2003: 256); Wendywood Development (Pty) Ltd v Rieger 1971 (3) SA 28 at 38-39; Fourlamel
(Pty) Ltd v Maddison 1977 (1) SA 333 at 342-343.
160 Clements v Simpson 1971 (3) SA 1.
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