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The binding legality of WhatsApp messages depends on the context. By themselves, they can be harmless when used for day-to-day digital communication. Where the matter becomes tricky is when contracts are concluded via these messages. There was no law governing the matter before 2002 and the regular contract common law had to apply. However, this was not conclusive enough because the courts had a tough job in terms of the intention of the parties as contained in the messages. There would have had to be more evidence outside of the messages themselves to ascertain the true intention. Of course, it is not the best practice to conclude contracts via WhatsApp, but these circumstances do arise, and it is a good thing that the law and courts have decided on it.
ECTA, Anyone?The first question is whether a data message is a legitimate means by which to produce legally binding obligations. This question was answered by the Electronic Communications and Transactions Act 25 of 2002. It acknowledges a data message as a legitimate method to conclude binding agreements. Of course, this would cover WhatsApp messages. The relevant sections are Sections 4, 11, 22, and 24. Section 4 provides that the ECTA ‘applies in respect of any electronic transaction data message’. The ECTA defines ‘electronic communication’ as ‘a communication by means of data messages’ and ‘data messages’ to include ‘data generated, sent, received or stored by electronic means’. Data means ‘electronic representations of information in any form’. Section 11 of the ECTA provides that information is not without legal force and effect simply because it is in the form of a data message. Section 22 confirms that agreements formed from data messages have legal effects. It also provides that agreements are concluded at the time when, and the place where, the person making the offer receives acceptance. Section 24 provides that intention to conclude the agreement can still be ascertained from data messages.
Supremely Appealing ContractsThe validity of electronic messages was confirmed by the Supreme Court of Appeal (“SCA“) in November 2014. The court held that variations to an agreement between the parties made via email were binding – the arguments put forth were that the variation to the agreement was required to be made in writing and signed by both parties in order for it to be valid and that this requirement had not been met because the variations were only discussed and agreed to via email. The court stated that the email signatures at the bottom of the emails amount to signatures and that the email messages constituted writing in terms of ECTA. It took 17 years before the courts were able to pronounce on the issue of WhatsApp messages, specifically. In 2019, the Supreme Court of Appeal had to rule on whether a WhatsApp message sent was an offer, which accepted, could constitute a contract. The matter pivoted on whether the person making the ‘offer’ intended to enter into a contract with the message’s recipient. The intention can only be ascertained from the external behaviour of the sender and receiver.
To vary or not to vary?There is also the instance where the terms of a written contract might be varied via a WhatsApp message. This is where parties may exchange messages that could be deemed to be part of their written contract or amend the existing written agreement. Of course, in the event that there is a non-variation clause, the fundamental requirement would be that the variation or amendment needs to be signed by both parties. Signatures are not available on WhatsApp, so there would have to be a deliberate action to attach them electronically. This would make the intention to vary the contract irrefutable. However, in the absence of a non-variation clause and no requirement to sign, the intention to change the contract must be ascertained from the text messages alone and possibly deemed to be part of the contract.
Don’t Even Try!There are clear exceptions to agreements being concluded via WhatsApp or any other electronic means. These exceptions are contained in Section 4(4) of ECTA. Even if it is found that the following agreements met all the legal requirements for contractual validity on WhatsApp, they will be invalid from the start:
- Immovable property sales
- Leases of land exceeding 20 years in duration
- Cheques and other bills of exchange
ConclusionIt is not advisable to create legally binding agreements on WhatsApp. Period. There may be an offer to do business and an acceptance of the offer, but this is not a contract. Those who wish to conclude contracts on WhatsApp should be careful to document the relevant messages and reduce them to writing at some stage with signatures at the end. Data messages are legitimate means to create legal obligations. We should be a bit more judicious in how we handle it from there. A further email, perhaps, or a follow-up call might be useful in making sure that there was an offer and acceptance and on what terms and conditions.
– Lisa Thomas