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Can you cancel a contract by email?
Posted on 16 March 2015
Your agreement is signed, sealed and delivered! You know that in the agreement a non-variation clause stipulates that no variation or consensual termination of the agreement shall be of any force or effect unless in writing and signed by both parties thereto. This clause seems simple enough…. If you want to cancel the agreement, all you have to do is ensure that it is in writing and signed. What can possibly go wrong?
We live in a day and age where electronic technology has become the primary platform for communication. Emails, Twitter, Facebook, Instagram and instant messaging services such as Whatsapp and BBM are electronic platforms we are all familiar with. The question that now arises, however, is whether an email would meet the standard requirements of a non-variation clause requiring any variation or cancellation of an agreement to be reduced to writing and signed by both parties to the agreement.
This question came into focus in the Supreme Court of Appeal case of Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash & Another. Here the court found that the exchange of emails between parties to an agreement, with each of the parties typing their first names at the end of the emails, was sufficient to cancel an agreement, which could only be cancelled in writing and signed by both parties.
In this case the court relied on the Electronic Communications and Transactions Act 25 of 2002 (“the Act”) and found that the requirement that an agreement had to be cancelled in “writing”, is satisfied if it is in the form of data messages and in this case the email met this requirement. With regards to the “signed” requirement, the court had to consider whether the parties’ names at the end of the emails, constituted a signature in terms of the Act, which provides that where an electronic signature is required by the parties and the parties have not agreed on the type of electronic signature to be used, that requirement is met if –
• ‘a method is used to identify the person and to indicate the person’s approval of the information communicated; and
• having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.’
A signature is commonly understood as a person’s name written in a distinctive way and serves as a form of identification. Our courts have generally adopted a practical rather than a formalistic approach to signatures. The question which remains, however, is whether the method of the signature used fulfils the functions to authenticate the identity of the signatory, rather than insist on the form of signature used. In terms of the Act, an electronic signature is defined as ‘data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature’. In the case above, the court held that the typed names of the parties at the end of the emails were intended to identify the parties and therefore constituted data that was logically associated with the data in the body of the email correspondence and accordingly constituted an electronic signature and this satisfied the requirement of a signature.
While our courts treat email communication in a similar manner to written communication, we cannot help but wonder whether a court will also be comfortable with a Tweet, Facebook, Whatsapp or BBM message whereby a cancellation message is sent merely with a typewritten name at the end.
It is evident from the above, that a non-variation clause is not necessarily that simple. Contracting parties should be cautious of their communications with each other, especially when using emails and messaging platforms such as Twitter, Facebook, Instagram, Whatspp and BBM. In order to avoid disputes and ambiguity in the future, it is advisable to stipulate in the agreement that electronic signatures will either not apply to amend or cancel an agreement or alternatively to regulate clearly in the agreement how electronic communications will apply. If you are unsure of what your contract says or unsure as to how to incorporate/exclude the position regarding electronic signatures and electronic communication in/from your agreements, contact a commercial specialist that can assist you to address your concerns. The reality is, electronic communication cannot be ignored and it is prudent to ensure that you understand how to safely orientate yourself contractually within our digital age.
Law, lawyers and lifestyle Speak no law without justice for all! LAWYA INC Founded by George Kleynhans January 2015 Welcome to our world of law, lawyers and lifestyle. We invite you to subsribe and join our discussion at law. George Kleynhans
1If I speak in the tonguesa of men and of angels, but have not love, I am only a resounding gong or a clanging cymbal. 2If I have the gift of prophecy and can fathom all mysteries and all knowledge, and if I have a faith that can move mountains, but have not love, I am nothing. 3If I give all I possess to the poor and surrender my body to the flames,b but have not love, I gain nothing.
4Love is patient, love is kind. It does not envy, it does not boast, it is not proud. 5It is not rude, it is not self-seeking, it is not easily angered, it keeps no record of wrongs. 6Love does not delight in evil but rejoices with the truth. 7It always protects, always trusts, always hopes, always perseveres.
8Love never fails. But where there are prophecies, they will cease; where there are tongues, they will be stilled; where there is knowledge, it will pass away. 9For we know in part and we prophesy in part, 10but when perfection comes, the imperfect disappears. 11When I was a child, I talked like a child, I thought like a child, I reasoned like a child. When I became a man, I put childish ways behind me. 12Now we see but a poor reflection as in a mirror; then we shall see face to face. Now I know in part; then I shall know fully, even as I am fully known.
13And now these three remain: faith, hope and love. But the greatest of these is love.
Don’t ask a lawyer not to argue, it’s like asking a dog not to bark!
Any lawyer should consider these principles.
Tribal authorities use to play a huge roll in the black communities of the olden days. These were the days when police and court were reserved for people who lived in town. In these times the tribal authorities used to act as the police stations, court and social services to their communities’ even taxes were once paid to these tribal authorities.
The head of the tribal authority is called a ‘Kgoshi’, which means chief or king in Tswana. The tribe has a ‘royal’ family around the kgoshi and headmen appointed by the tribal authority to execute rules in the community.
These tribal authorities had their own police, juries and judges. The term jungle-justice derived from the days when the king (zulu) had the power over life and death.
Communities depended on tribal authorities, mostly farming rights, law and order. Tribal authorities had to re-invent themselves after the birth of the new South Africa. The availability of police stations, social services and courts have become popular in the rural communities.
George have been appointed as an attorney by various tribal authorities in the Limpopo region and he realized from the outset that any attorney acting for a tribal authority should have a good understanding of their tradition, culture and belief.
Most African people believe in the supernatural, ancestors and the powers of the dead (forefathers). The elements in nature are used to confirm a sign from a super power such as god in the sky, evil sign of lightning, pointing out the evil person (moloi) and the sign of rain as a blessing.
Those people who are pointed to be evil suffer a gruesome death. These persons are chased into a so-called evil-house by the community, set on fire and they burn to death. The scary part of criminal defence begins when the attorney is instructed to defend the accused who set the house alight and those who kept the ‘évil’ ones inside with sticks and stones to burn to death.
In African tradition we find the traditional healers, who have expert knowledge of all the plants in Africa, the medicine created by those plants and the effect thereof. These are real powerfull remedies for any kind of sickness, specially found in the roots of these plants.
The problem, however, we also find those ‘doctors’ who will use the effect of these plants to become powerfull destroyers of people’s so-called enemies. An African who is troubled by another African will consult the sangoma, dressed in leopard-skin, throwing his bones and he is usually provided with some deadly medicine (muti).
Some so-called medicine is made from animal parts like the brains of the crocodile, which is deadly even in modern time because this type of muti is hard to detect by professional doctors, cause of death may not be determined.
The most scary side of this type of medicine is the potions created by the death of a human being. It can be any part of the body, usually children or women, who are murdered for the so-called power in their body-parts such as good fortune or cure for hiv or cancer.
In 1990’s George was instructed on the defense of 4 men who murdered a medical student in her final year of studies. This young lady was killed for her body parts, mostly her private parts, head and fingers.
A young boy was walking in the veld with his dog, the human remains of this young lady was found by chance when the dog started digging. In a nearby village another lady remembered a boyfriend who was looking for spade… the murderers were found and arrested with the sangoma who purchased these body parts.
The sangomas even sell a love potion to the African ladies to overpower their prospects in finding/keeping husbands by giving them korobela (muti in food). These guys are dangerous, have a so-called medicine for each and every problem, specially in our modern society.
In African tradition, leaders or healers, are well respected. We have to be reminded that African people lived for centuries without democracy and modern influences. Madiba (Nelson Mandela) was also a young boy in an African village, raised in terms of African tradition, today the roll-model for most South Africans.
The challenge to all the different groups in the new South Africa is to create a tradition that will be proudly South African acceptable to all groups.
Ilaw law no law without justice Speak no law without justice! http://www.amazon.com/ George – Kleynhans /e/B008DBDZ8M law without justice A law is deserving of respect to the extent, and only to the extent, it is just. A law which is not just deserves only…