OFFER AND

ACCEPTANCE
Dr Innocent Maja/Walter
Makhuyana
 What is an offer?
 A promise/proposal made by one party(offeror) with the intention
that on mere acceptance by the other party(offeree) in order for it
to create a contract
 It must be unconditional and unqualified and should have animus
contrahendi(intention to Contract)
Statements lacking animus contrahendi
 Invitations to treat (e.g advertisements)
 Statements of information
 Requests for an offer
 Mere puffs, commendations or sales talk
 Statements of intention to contract
 Proposals for partial, incomplete, or provisional agreement
 tenders

See Antonio v Ashanti Goldfields Zim Ltd 2009(2) ZLR 354

Nkomo and Others v ZESA 2004(1) ZLR 345
 CHARACTERISTICS OF A VALID
OFFER
 It must be unconditional and unqualified
 It must clearly define all terms where agreement is sought
 It must be addressed to a specific offerree
 It must be communicated to the offerree
 It must be a firm offer
 It may be verbal, written or implied
 It must be consistent will all the essential elements of the
contract
 It must not have been revoked/ lapsed
 IRREVOCABLE OFFERS
They cannot be revoked for a fixed time, at all or within the
fixed time.
 Option – when parties agree to keep an offer open for a
specified time(an offer coupled with a contract to keep
offer option for specified period. Breach of an option
entitles the option holder to either exercise the option,
apply for an interdict or sue for damages
 Right of first refusal – an agreement that entitles the
holder to the first opportunity to buy if the seller
decides to sell.
 Contracts to keep an offer open for acceptance by a
third party (e.g charity, insurance, trusts, etc)
 TERMINATION OF AN OFFER
An offer can be terminated:
 If it is rejected by the offeree
 After expiry of a fixed time
 After expiry of a reasonable time
 If one of the parties die
 If one party loses their contractual capacity
 If the offer is withdrawn/ revoked by offeror
 When there is a counter-offer (Orion Investments (Pvt)
Ltd v Ujamaa Investments (Pvt) Ltd & Others 1987 (1)
ZLR 141 (S)
 Characteristics of a valid
acceptance
 It should be clear, unambiguous & unequivocal
 It should not be qualified and must bring negotiations
to an end
 It must correspond with terms of the offer
 It must be accepted by the person to whom it was
directed
 It may be express or implied
 The offeree must have had knowledge of the offer
before acceptance
 It must be communicated to the offeror
 Modes of communicating
acceptance
 Acceptance by post (expedition theory vs information
theory)
 Acceptance by telegram (upon posting)
 Acceptance by telephone (when the offeror becomes
aware of acceptance)
 Acceptance by telex, fax, email, etc (No authority but
inclination is to follow English law that requires
acceptance to be valid when the offeror becomes
aware of the communication)
 Contracts where there is no
offer and acceptance
 Where there are pure fictions imported
into a transaction for doctrinal reasons
 When a scheme is set up and a number of
participants enter into contracts with the
originator of the scheme e.g competition
rules, rules on a block of flats, etc
 Contracts created by statute