What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?
If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?
What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?
In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?
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Traditional consensus
- No agreement exists unless the intention of the one party corresponds exactly with that of the other.
Quasi-mutual assent
- If there is not traditional consensus, there can still be an agreement based upon quasi-mutual assent.
Three-fold enquiry
- The following three-fold enquiry must be conducted before it can be accepted that a contract has been established on the basis of quasi-mutual assent:
- step 1: determine whether there was a misrepresentation as to one party’s intention
- step 2: determine who made the representation
- step 3: determine whether the other party was misled by such misrepresentation – there are two possibilities in this regard, namely, a determination that the other party was actually misled and a determination as to whether or not a reasonable man would have been misled
Important considerations to be taken into account in determining step 3
- An examination of the factual matrix is required, taking into account the following:
- all the facts relevant to show the intention of entering into the contract
- contemporaneous documents
- conduct in negotiating the deal
- communication between the parties
- steps taken to implement the contract
- If there is a real possibility of a mistake made in the offer, the party that wishes to assert that there is a contract has the following obligations:
- there is a duty to speak and to enquire whether the express offer is the intended offer – only once such obligation has been executed could an offer be accepted
- such party should not be negligent, but exercise proper care in concluding that the parties reach an agreement
- Snapping up a bargain, when a reasonable person would have acted more carefully, having realised the real possibility of a mistake in the offer, is not bona fide and will not be sanctioned by the courts.
Food for thought
- Concluding contracts via an email exchange may be risky.
- The language used in email exchanges may be overly informal, ambiguous, contrary or short of the details necessary for the intended contract.
- A poorly-worded email might also be interpreted in a manner contrary to what was intended.
- In University of Zululand v Dlongolo (2025) 36 SALLR 11 (LAC), the labour court had to deal with the issues as set out in this article – the cross-pollination of employment jargon with terminology contained in pension fund rules, in an offer and acceptance by email, resulted in the claim in this appeal.
