Week 3 Lesson 3 - Aspects of an offer continuation

Recap:

We said an offer is defined as a proposal of specific terms of performance

which is made with the intention of being accepted by another person.

So far we looked at the following aspects of an Offer:

a) Offer does not have to follow a specific format, it can be in writing, oral
or by conduct.

b) Whether a statement or act is an offer will depend on the intention of the

party making it.

There must be the intention to be bound by the offeree’s acceptance. This is

called the Animus contrahendi.

Continuation:

It is possible that statements made in circumstances that would initially appear

as if there is no intention, will end up constituting an offer. Eg, statement made
in anger, by the proposer persisting on the proposal even when calm.

Thus whether a proposal is made with or without animus contrahendi will

depend the facts of each case by looking at:
i. The nature of the proposal,
ii. Words used to express the proposal
iii. The relationship between the parties and
iv. Circumstances surrounding the making of the proposal

See Spes bona bank v Portals water 1983 (1) SA 978 (A)

Exercise:
One Monday B’s car refused to start for the 9 th time that month, he gave it a
good kick and asked his friends “Anyone wants to give M100 for this wreck?”
Immediately C produces a M100 note from his pocket and hands it to B. Has B
now sold the car to C?

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The third aspect of an offer is that:

c) A proposal/statement should be complete, certain and definite in nature.

See Wasmuth v Jacobs 1987 (3) SA 629 (SWA) at 633.

In other words, the proposal must define all terms on which agreement is sought
- the proposal must be unambiguous (unequivocal).

Let’s elaborate on the meaning of aspect (c) so as to understand it better. We

will first look at the requirement that the statement must be complete.

i. Complete

A statement will be complete if all material terms of the contract are set out in
the offer.

Terms of a contract are divided into 3 parts: Essentialia

Naturalia
Accidentalia/ incidentalia

Essentialia are things which are the essence of a contract, things without which
a contract will not subsist.

They are those terms that identify the type of contract that we are dealing with.

e.g. the essentialia for contracts of sale are the merx and the pretium i.e.
the thing sold and the price respectively.

It may happen that a contract is lacking in one or two essentialia.

This will not necessarily invalidate the contract, rather the contract will be of
the type that the present essentialia would give rise to.

Eg. we may not have a contract of sale where there is only a merx but no
price. This would rather be a contract of donation.

 However, the offer should at best contain the essentialia of the type of
the contract intended.
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Naturalia

If the essentials/essentialia of a contract are present, then certain results will

follow.

The results are the naturalia of a contract.

Naturalia are those terms that are automatically attached by law to a specific
type of contract without the parties having to specifically include them in their
agreement.

e.g. Parties to a contract of sale do not necessarily have to agree on the

warranty against latent (hidden) defects. This warranty states that the seller is
required to pay for the repair of defects or damage caused by defects which
could not be discernible to the naked eye on inspection before the sale.

This term will automatically form part of the contract even if parties do
not expressly agree that it shall.

Naturalia are therefore things which are of the nature of the contract, they form
part of it. They are a natural consequence of a certain type of contract.

Naturalia differ from essentialia in that a contract may subsist without them.
- For example, parties may decide to expressly exclude naturalia from their
contract.

Eg, a warranty against latent defects may be excluded from a sale

contract by a term that which says it is a sale voetstoots. This term means that
the buyer is buying the property "as it stands", in other words with defects and
all. Therefore, the buyer is releasing the seller from warranty against latent
defects.

 The naturalia of the contract need not be included in the offer, since
they automatically form part of the contract.

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Incidentalia
These terms do not form the nature of the contract; they are only included in the
contract by express agreement.

Eg. an agreement to pay money due to another over a specified period of

time.

They are terms that cover collateral or residual matters for which parties wish to
alter or make special provisions as the case may be.

 If the offeror wishes to include the incidentalia (as additional terms) in

the contract they must also be set out in the offer.

Prepared by: Dr. M. Kulehile

Faculty of Law
National University of Lesotho
Roma

Date : 01 November 2022