because it applies regardless of whether parties are praesentes or inter absentes.170
It may also be misplaced by the offereor’s prescribed mode of acceptance.171
2.3.4.2 Expedition theory
The expedition theory or postal rule was found to pose difficulties too. In terms of the
expedition theory as explored in the case of Cape Explosive Works Ltd v South African
Oil & Fat Industries Ltd, 172 a contract concluded via the post comes into being at the
time when and place where the letter in terms of which the acceptance took place is
posted. In the case of A to Z Bazaars (Pty) Ltd v Minister of Agriculture, 173 the court
held that even though the offeree had posted the letter of acceptance, it could be
cancelled by another correspondence which would reach the party making the offer
before the former one reached which in that event, could effectively render the final
intention of the party accepting the offer to prevail. The offeror could also prescribe a
mode of acceptance which would render it unnecessary to be informed of
acceptance.174
2.3.4.3 Reception theory
As per the reception theory, the contract is deemed to have been concluded once the
letter of acceptance is received by the party making the offer, even without having
read the contents thereof.
175
Having briefly stated the common law requirements for a valid contract, the
subsequent part of this chapter will focus on addressing how the Model Law transpose
the requirements to an online environment.
2.4
The MODEL LAW’S PERSPECTIVE
2.4.1 Introduction
Informed by the background that modern business dynamics render legal rules
promulgated for paper-based contracts obsolete in an online environment, the Model
170
Van der Merwe (2003: 61).
Van der Merwe (2003: 61).
172 Cape Explosive Works Ltd v SA Oil and Fat Industries Ltd 1921 CPD 244; Dunlop v Higgins 1848 9 ER at 805.
173 A to Z Bazaars (Pty) Ltd v Minister of Agriculture 1975 (3) SA 468 at 478.
174 Van der Merwe (2003: 61).
175 Jason (2004: 42).
171
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