2024

Introduction
An offer is a proposal by one party to another
to enter into a legally binding agreement with
him/her.
In principle an offer is a proposal to contract
with the following element –
A) It must be firm
B) Complete – there must be nothing more to
negotiate
C) Clear and certain
Intro. Cont.
The person making the
offer is known as the offeror,
proposer or promisor
The person to whom the
offer is made is called the
offeree
How an offer is made
An offer may be made by express words which
are spoken or written.
This is known as an express offer.
Example – Tebogo says to Letsile, ‘...will you
purchase my Toyota Prado for $50 000-00’?
Equally, an offer may be inferred from the
conduct of the parties or the prevailing
circumstances.
This offer is known as an Implied offer.
Example - When Tlokweng bus company
plies it route on the Gaborone-Francistown
route, it has an implied offer to carry
passengers for a certain fee on that route.
Types of offers
There is a specific and general offer.
Where an offer is made to a particular person
it is called a specific offer.
Eg. Thomas offer to sell a car to Frank
only for 300 000 pula.
When an offer is made to the world at large it
is called a general offer.
Eg. Thomas offers a prize of a book for
whoever becomes the best law student at
UB in 2024.
Requirements of a valid offer
The offer must be firm – it must be made with
animus contrahendi i.e. With the intention
that its acceptance will call into being a
binding contract (Efroiken v Simon 1921 CPD
367).
It must show an obvious intention on the part
of the offeror to be bound by it.
E.g. Thomas jokingly offers Frank 300 pula for
his cellphone and Frank knowing that Thomas
is not serious says ‘I accept’. Thomas’s
proposal will not constitute an offer.
Requirements cont.
The offer must be complete – it must contain
all the material terms of the proposed
agreement
There should not be any further matters to be
negotiated after the fact
Where a preliminary agreement has been
entered into, it will be incorporated into and
superseded by the comprehensive and final
agreement
Requirements cont.
The offer must be definite, unambiguous and
certain.
The offer should not be vague and the
content of the obligation must be clear and
concise.
If Tebogo says to Letsile, ‘I will buy your
house if it suits me,’ there cannot be any offer
to accept because it is vague.
See Kantor v Kantor 1962 (3) SA 207 (T)
Requirements cont.
 The offer must be in plain understandable language
 The offer must clearly outline the state of the goods which
are subject to the contract
 Negative marketing option is prohibited e.g. Notifying a
customer that goods will be offered to them unless they
decline
 Consumers should be given a cooling-off period where
goods are marketed directly to them.
 Catalogue marketing is prohibited – supply of goods
telephonically or by postal order with customers not having
had the opportunity to inspect the goods prior to
concluding a contract is a regulated process.
 The supplier must provide his/her name, licence or
registration number, physical address, sales record,
currency utilised, price to be paid, delivery arrangements,
cancellation, refund policies, manner of filing a
complaint...etc
Offers to the public
 One cannot contract with the general public and then
conclude a contract with specific members of the public who
respond to the contract.
 In the English case of Carlill v Carbolic Smoke Ball Co. [1983]
1 QB 256 manufacturers of a patent medicine advertised that
they would pay 100 pounds to any person who contracted
influenza after having taken the medicine in compliance with
the prescription.
 A customer followed the prescription but contracted
influenza.
 The customer claimed the 100 pounds. The matter went to
court which decided that the advertisement amounted to a
general offer to any member of the public which the plaintiff
accepted and satisfied the set conditions.
 In Cf Steyn v LSA Motors Ltd 1994 (1) SA 49 (A) – it was held
that a company that offers a car to any participant in a golf
tournament scores in a particular hole could be compelled to
honour the promise by the court.
Advertisements
A key question to ask is if an advertisement is an
offer.
When a business offers goods through an advert to
the public is it making an offer to the very public?
Should anyone respond to the advert does this
amount to a contract?
Is the advert simply an invitation to do business?
The rule in law is that an advertisement constitutes
merely an invitation to do business rather than an
offer – See Crawley v Rex 1909 TS 1105.
Promises of reward
Where a reward is offered in return of a
specific performance, in instances where the
offer is sufficiently certain, that contract is
binding.
See Carlill v Carbolic Smoke Ball Co and
Bloom v American Swiss Watch Co 1915 AD
100.
Calls for tenders
An invitation to the
public to submit a
tender for work to be
done is not an offer that
is open to acceptance by
the highest tenderer.
Auctions
Who makes the offer? Is it the auctioneer or
the bidder?
This depends on the conditions of sale under
which the auction is conducted.
These conditions are drawn up by the seller
or the auctioneer and are communicated to
potential buyers by being advertised or
displayed at the auction venue or being read
out at the beginning of the sale.
Special terms of a contract
Where any special terms are to be included in
a contract, there must be duly brought to the
notice of the offeree at the time when the
proposal is made.
If it is not done and if the contract is
subsequently entered into, the offeree will not
be bound by them. Also these terms should be
presented in such a manner that a reasonable
man can become aware of them before he
enters into contract.
Olley v Malborough Court Ltd 1949
A hotel put up a notice in a bed room,
exempting the proprietor from liability for
loss of client’s goods. The court held that the
notice was not effective as it came to the
knowledge of the client only when the
contract to take a room had already been
entered into.
Parker vs SE Rail Co. 1877
A deposited a bag in the cloak room of a
railway station. On the face of the ticket,
issued to him, was written ‘see back’. One of
the printed conditions limited the liability of
the company for loss of a package to 10
pounds. The bag was lost and P claimed 24.50
pounds as its value.
The court held that P was bound by the
conditions on the back of the ticket even if he
had not read them.
Termination of an offer
An offer terminates under the following
conditions:
Rejection of the offer
Death of either party
Exffluxion of the prescribed time or a
reasonable time
Revocation of the offer
Loss of legal capacity to act
Acceptance of the offer
Acceptance
Refers to the act of assenting by the offeree to
an offer
The offeree manifest his/her willingness to be
bound by the terms of the offer.
An acceptance may be express or implied
It is express when it is communicated by words,
spoken or written or by doing some required act
It is implied when it is to be gathered from the
surrounding circumstances of the cases or the
conduct of the parties.
Requirements for a valid
acceptance
The acceptance must be unqualified
- The acceptance must be a complete and
unequivocal assent to every element of the offer.
The entiure offer must be accepted and nothing
more or less.
There should be no new conditions arising or a
qualified acceptance which constitutes a
counteroffer.
An ambiguous acceptance does not qualify as a
valid acceptance.
Requirements cont.
The acceptance must be made by the
person to whom the offer was made
Where an offer is made to the general public
it may be accepted by any member of the
public but if made to a specific person it con
only be accepted by that specific individual.
See Bird v Sumerville 1961 (3) SA 194 (A)
Requirements cont.
The acceptance must be a conscious
response to the offer
A person cannot accept an offer which he or she
is not aware of.
In Bloom v American Swiss Watch Co a company
offered a reward for the recovery of jewellery
stolen by some thieves. B provided information
about the thieves which led to the recovery of the
jewellery whilst not being aware of the reward.
The Court held that B could not claim the reward
which he knew of only after he had provided the
information. There was no acceptance and
therefore no contract.
Requirements cont.
Acceptance must be in a prescribed form
prescribed by the offeror
The offeror must prescribe the method of
acceptance as the dominus or initiator of the
contract.
See in general Pillay v Shaik 2009 (4) SA 74
(SCA)
Summarised Legal Rules as to
Acceptance
Acceptance must be:
a) Absolute and unconditional;
b) Must be communicated to the offeror
c) Must be according to the mode prescribed or usual and
reasonable mode (e.g. Telephone or letter)
d) It must be given within a reasonable time
e) It cannot precede an offer
f) It must show an intention on the part of the acceptor to
fulfil terms of the promise
g) It must be given by the party or parties to whom the offer is
made
h) It must be given before the offer lapses or before the offer
is withdrawn
i) It cannot be implied from silence