Cape Town – February 20, 2020

For a contract to be legally enforceable, the general principle under contract law is:

(a) the existence of a consensus between the contracting parties,

(b) consideration or an exchange of goods, and

(c) the intention by the parties to create a legal relationship.

It is well known that contracts can either be executed in writing or orally by the parties in order to attain a given purpose.

We know that the main benefits of having a written contract are:

(i) ensuring that the parties to the agreement are fully aware of the contents of the contract; and

(ii) creating transparency between the parties by including useful information and guidance for the parties, in particular by indicating which disputes, variations or amendments can be resolved or made under the contract.

With the advent of technology, day-to-day use of instant messaging services is part of the life of almost everybody. For this reason, legal practitioners are compelled to adapt and change the manner in which legal documents are drafted so that they have the same legal effect as traditional contracts, especially in consideration of the growing number of electronically-negotiated and executed contracts through instant messaging applications.

One of the most popular of these applications is WhatsApp: this is a highly-utilized, secure platform which uses end-to-end encryption in order to allow users to exchange substantial amounts of data in a fraction of a second. As a result, this platform has become a common ground for parties to conduct negotiations and agree on contractual terms.

This said, the question is whether a, written, legally-binding agreements can be validly executed through applications like WhatsApp.

In 2018, the High Court of India held that legal notices and messages sent over WhatsApp constitute valid legal evidence to be used in support of identifying a party’s intention to enter into a contract. Similarly, in South Africa, the High Court held that signing one’s name at the end of a WhatsApp message is sufficient to give rise to a binding agreement. This decision was later overturned by the South African Supreme Court of Appeal who held that the WhatsApp message, in that specific case, did not contain an offer, which, if accepted, would have given rise to an enforceable contract. It remains to be seen whether other world’s jurisdictions will follow suit in affirming this principle.

It is therefore prudent that when drafting any contract, a provision is made to clarify the use of instant messaging services, like WhatsApp, to deliver legal notices and messages.

Indeed, caution should be exercised when making offers and negotiating terms via this medium, since, subject to the aforementioned conditions and to the applicable law, a simple Whatsapp message may be considered as a party’s intention to create a legally binding agreement.

Dr. Rushmina Murtuza