Asked by the Customer on 28-07-2015 12:14:30
Question posted in the Property Law category relating to Gauteng
Question posted in the Property Law category relating to Gauteng
Dear Lawyer, We made an offer on a farm property near Cullinan. The offer was made in writing and the seller stated that his lawyer would draw upan agreement for us to pay off on the property.Initially it was a rent to buy abut later changed to a mortgage bond.The seller however never signed any of our offers but did accept and confirm the offer by way of e-mail. We now have a dispute as to the confirmation of the sale. I understand that e-mails accepting a property sale have RECENTLY been accepted as confirmation of a sale. Previously Alienation of Land Act accepted only acceptance and offers in writing.
Please could you confirm this change in Case Law as to accepting e-mails and please send through the relevant Case Law references.
Yours sincerely
Charles
Please could you confirm this change in Case Law as to accepting e-mails and please send through the relevant Case Law references.
Yours sincerely
Charles
Message from the Attorney
Posted by Att. Patrick on 28-07-2015 12:46:15
Hi there,
The emails that you are talking about were actually discussed in the recent Supreme Court of Appeal case of Spring Forest Trading CC v Wilberry. The case didn't deal with a sale of property, but rather whether a settlement agreement was validly concluded or not.
There is a good article here that will give you more information: http://dommisseattorneys.co.za/amending-agreements-exchange-emails/
With regards to the 'signed' requirement, the SCA had to consider whether the names of the parties at the foot of their respective emails constituted a 'signature' as contemplated by ss13(1) and 13(3) of ECTA.
In this regard, it is important to note that ECTA differentiates between two kinds of signatures, namely:-
(i) an "electronic signature" being "data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature," and
(ii) an "advanced electronic signature" being "an electronic signature which results from a process which has been accredited by the [Accreditation] Authority as provided for in s37," and is normally used where the signature of a person is required by law and such law does not specify the type of signature to be used.
In analysing the provisions, the SCA pointed out that s13 makes a distinction between a situation (i) where a law/statute requires a signature and (ii) where the parties themselves agree on the added formality of a signature.
In the first instance (i.e. where a law/statute requires a signature), s13(1) of ECTA requires an advanced electronic signature whereas in the latter instance (i.e. where the parties themselves agree on the added formality of a signature) only an electronic signature is required as contemplated by s13(3) of ECTA.
Accordingly, it is my opinion that since the Alienation of Land Act specifically requires that the sale of any land be reduced to writing and signed by both parties (i.e. the signature is a requirement by operation of law), only an advanced electronic signature in terms of s13(1) would be good enough.
If you don't have that, then you wouldn't have a properly concluded agreement.
More reading: http://www.polity.org.za/article/validly-cancelling-or-amending-an-agreement-via-email-in-spite-of-a-non-variation-clause-2015-02-20
This firm argues otherwise, and I think that they are wrong in their interpretation: http://leeuwnermaritz.co.za/can-an-agreement-of-sale-of-land-be-concluded-cancelled-or-amended-via-email/
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
The emails that you are talking about were actually discussed in the recent Supreme Court of Appeal case of Spring Forest Trading CC v Wilberry. The case didn't deal with a sale of property, but rather whether a settlement agreement was validly concluded or not.
There is a good article here that will give you more information: http://dommisseattorneys.co.za/amending-agreements-exchange-emails/
With regards to the 'signed' requirement, the SCA had to consider whether the names of the parties at the foot of their respective emails constituted a 'signature' as contemplated by ss13(1) and 13(3) of ECTA.
In this regard, it is important to note that ECTA differentiates between two kinds of signatures, namely:-
(i) an "electronic signature" being "data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature," and
(ii) an "advanced electronic signature" being "an electronic signature which results from a process which has been accredited by the [Accreditation] Authority as provided for in s37," and is normally used where the signature of a person is required by law and such law does not specify the type of signature to be used.
In analysing the provisions, the SCA pointed out that s13 makes a distinction between a situation (i) where a law/statute requires a signature and (ii) where the parties themselves agree on the added formality of a signature.
In the first instance (i.e. where a law/statute requires a signature), s13(1) of ECTA requires an advanced electronic signature whereas in the latter instance (i.e. where the parties themselves agree on the added formality of a signature) only an electronic signature is required as contemplated by s13(3) of ECTA.
Accordingly, it is my opinion that since the Alienation of Land Act specifically requires that the sale of any land be reduced to writing and signed by both parties (i.e. the signature is a requirement by operation of law), only an advanced electronic signature in terms of s13(1) would be good enough.
If you don't have that, then you wouldn't have a properly concluded agreement.
More reading: http://www.polity.org.za/article/validly-cancelling-or-amending-an-agreement-via-email-in-spite-of-a-non-variation-clause-2015-02-20
This firm argues otherwise, and I think that they are wrong in their interpretation: http://leeuwnermaritz.co.za/can-an-agreement-of-sale-of-land-be-concluded-cancelled-or-amended-via-email/
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Answer Accepted
This answer was accepted on 29-07-2015 08:29:23
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