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Adding words to a legal offer you have received constitutes a counter-offer.

Succumb to the temptation to add a few words of your own to a legal offer you have received before signing it may scupper the whole deal.

When buying or selling immovable property (land or buildings), beware of the legal implications that can ensue if, before you sign, you succumb to the temptation of scribbling a few extra words into the document, or crossing out some of the existing words.

This is what the purchaser did in a recent case that came before the courts. The contract was for the purchase of certain undeveloped land, and the purchaser, when signing the offer to purchase, added the following words to the contract:

"This offer is accepted subject to the seller obtaining registration of the sub-division of the property".

The litigation that resulted from this small, longhand addition to the contract went all the way to the Supreme Court of Appeal. (See Rockbreakers and Parts (Pty) Ltd v Rolag Property Trading (Ply) Ltd [2009] ZASCA 102.) The legal complications caused by the addition of these few words are discussed below.

Contracts for the sale of land must be in writing and signed.

The problem arises because the Alienation of Land Act states in section 2(1) that -

"No alienation of land... shall... be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority".

Expressed in plainer language, this means that a contract for the sale of immovable property is legally worthless, and is therefore invalid and unenforceable, unless it is in writing and signed by the parties.

The courts have held that this means that all the "material terms" of the contract must be in writing, but have conceded that it is not easy to determine what is or is not a "material term". It is clear, however, that the "material terms" go further than simply the identification of the property and the price to be paid.

In this particular case, the added words which commenced with "this offer is subject to 0", in their ordinary legal meaning, impose a suspensive condition, that is to say, these words mean that the operation of the entire contract is suspended (remains in abeyance) until the occurrence of the stipulated event - in this case the registration of the sub-division.

Adding some words to an offer you have received, constitutes a counter-offer of your own.

When a person receives an offer (as in this case, an offer to purchase the land in question) and he does not simply accept the offer as it stands, but adds some terms of his own and then signs it, he is in law not accepting the offer, but making a counter-offer, which the other party can then decide whether to accept or reject.

In short, the would-be purchaser in this case, by adding those few, seemingly innocuous words to the deed of sale before signing it and returning it to the seller, was opening a Pandora's box of legal complications.

The purchaser's advocate tried to argue that the addition of the words 'subject to the seller obtaining registration of the subdivision of the property" was not a counter-offer, because this stipulation was implicit in the contract anyway - in other words, the seller would not be able to give transfer until the sub-division was registered - and therefore that the addition of these words was not a counter-offer, but a mere expression of what was already tacitly contained in the contract.

The court rejected this argument and held that the additional words, tacked onto the offer by the purchaser, were indeed material to the contract and constituted a counter-offer. The document was consequently of no legal force unless this counter-offer was accepted in writing by the seller, which, as matters turned out, never transpired.

In the result, the court held that the "contract" was invalid and unenforceable.

The would-be purchaser, having outlaid a large sum in legal expenses to try to get a judgement in his favour to enforce the contract, was ordered to pay the seller's legal costs and walked away from the litigation empty- handed.

The moral of the story

If, in negotiating a contract, you receive a legal "offer", you are in a strong position. A simple acceptance of the offer brings about a legally enforceable contract.

If you add a few words to the offer, or make any other kind of counter-offer, your strong position is lost. There will now be no contract unless and until the other party accepts your counter-offer. If he does not, you cannot then recant, and say, well in that case, I accept your original offer. Your counter-offer caused the original offer to lapse, and it is no longer open for acceptance, unless the offeror renews it.


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