Can WhatsApp Change a Property Deal?

A buyer and a seller sign an Offer to Purchase for a house. Two weeks later, via WhatsApp, the seller agrees to reduce the purchase price by R20 000 because the home inspection done by the buyer found that the geyser needs to be replaced.

The buyer replies "deal" and sends a thumbs-up emoji. No addendum is signed.

When it is time to proceed with the transfer, the seller refuses to accept the reduced purchase price.

Is The Seller Legally Bound?

Not necessarily, when it comes to the sale of immovable property, electronic communication is not enough to amend the agreement.

When Can Electronic Communication Be Binding?

In terms of the Electronic Communications and Transactions Act (ECTA), electronic messages such as emails and WhatsApp messages carry real legal weight. Section 13 of the ECTA gives electronic signatures legal recognition, and our courts take a practical view of what qualifies as a signature.

In Spring Forest Trading v Wilberry, the Supreme Court of Appeal (SCA) held that the question is whether the method used authenticates the signatory's identity and intention to be bound by the agreement, not whether it looks like a wet-ink signature. A typed name at the end of an email, on that reasoning, can validly sign off on a contractual variation.

Foy many ordinary commercial transactions, a WhatsApp or email exchange can have fully enforceable legal consequences.  The sale of immovable property is different.

Why Is the Sale of Immovable Property Different?

Section 2(1) of the Alienation of Land Act 68 of 1981 requires an agreement for the alienation of land to be contained in a written deed of alienation signed by the parties, or by authorised agents acting under written authority. The purpose of these formalities is to provide certainty and prevent disputes about what was actually agreed.

ECTA also specifically excludes agreements for the alienation of immovable property from its electronic contracting provisions.

How Should Amendments to the Sale of Immovable Property Be Made?

In Kovacs Investments v Marais, the SCA dealt with a proposed variation to a sale of immovable property and confirmed that a variation affecting the parties' contractual obligations must comply with the formalities required by the Alienation of Land Act.

Any amendments to the agreement should be recorded in a written addendum and signed by all parties.

Practical Guidance

Electronic exchanges are convenient, but they should not replace a formal addendum when the partied are making changes to the agreement.

A good rule to follow is simple:

If the change matters to the deal, put it in writing and sign it.

A properly drafted non-variation clause in the Offer to Purchase can also make it clear that changes to the agreement must be recorded formally rather than agreed through informal messages.

If you are unsure whether a proposed change requires a formal addendum, or need assistance with reviewing or drafting an addendum, contact our team for assistance or guidance.

Written by: Lutendo Nemavhola
Moderated and approved by: Rohula Kgabu

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