Most (if not all) of our communication is electronic in some form. Gone are the days of paying for a newspaper advertisement or putting posters on lamp posts when you want to sell your old bicycle or that jacket that you bought on a whim! Many of us are part of a “buy and sell” or “second-hand” group on Facebook. All we do is take a picture of the item we want to sell and post it to one of these groups with a price. You gain access to a market of 10 000 people immediately at the click of a button.
The problem is, there are no regulations. You often see complaints about someone paying for a product and never receiving it.
The rules of buying and selling are changing to keep up with technology and our law must re-evaluate the implications of contracting in the same manner. It is no longer as simple as determining when (and if) a contract has come into existence and if it is valid and enforceable. In most cases, you have nothing in writing except two comments on a Facebook post. If you’re lucky, you have a direct message conversation confirming the price and delivery.
This leads to disputes and lawyers are often consulted on trying to enforce payment or delivery of a sale agreement on Facebook.
In terms of South African law, a valid contract comes into existence when these requirements are met:
- Valid offer and acceptance
- Parties have legal capacity – i.e. 18 years (a minor can only enter into a contract with the assistance of a legal guardian)
- Performance is possible
- Consensus on certain and definite terms
- It is lawful
- Certain other formalities which differ from contract to contract
For an “electronic contract” to be valid, the above basic common law requirements must be met, but in the case of Spring Forest Trading CC v Wilberry t/a Ecowash and Another 2015 (2) SA 118 (SCA), the Court held that:
“…when there are formal requirements of writing and signature imposed by statute or the parties to the transaction, these can generally be satisfied through electronic transactions.”
A Facebook post on a group creates a general invitation to the public to contract, and a valid contract will come into existence once the seller and the buyer agree on the details of the offer, and the offer is accepted by the buyer. However, the performance must be possible and lawful, i.e. you can deliver the item that is sold (and it is not your brother’s speakers you are technically stealing!)
There are many variations of a sale post on Facebook and each case will be considered on its own facts, but the detail of the communications between the parties will hold the key as to whether there are sufficient grounds to confirm the existence of a valid contract.
If the electronic communications between the parties meet the above requirements, a valid and enforceable contract will come into existence and the parties will each have legal rights and obligations that are enforceable in law. This means that you can approach a court to get your money back or delivery of your item bought.
The Dingley Marshall Inc. Social Media Law Department deals with these types of queries regularly and can assist you in determining whether your Facebook sale is a valid contract and to help you get back what is yours.