Business is often negotiated through voice notes, WhatsApp messages and short emails. The commercial team may regard the exchange as preliminary. The counterparty may read it as agreement.
South African law does not treat electronic communications as legally invisible simply because they are informal. The Electronic Communications and Transactions Act recognises data messages and provides a framework for electronic transactions. The real enquiry remains familiar: was there an offer, acceptance, sufficient certainty and an intention to create legal obligations?
The dangerous message is usually not dramatic
It may be as ordinary as:
“Fine, we agree. Please proceed and we will sort out the paperwork.”
That sentence can create an evidential problem even where the sender believed a formal contract would follow. The surrounding communications, authority of the sender, prior course of dealing and any agreed signature formalities will matter.
Three controls reduce most of the risk
- Use clear reservation language. State that negotiations are subject to contract, internal approval and signature by an authorised representative.
- Align the workflow. The approval matrix, procurement platform and contracting language should all identify the same point at which the business becomes bound.
- Train the people who negotiate. The greatest risk may sit with the person closest to the supplier or customer, not with the legal team.
Electronic signature is not the same as casual communication
Electronic signatures can be valid, but the applicable requirement depends on the transaction, the parties’ agreement and any formalities imposed by law. A typed name at the end of an email may carry legal significance in the right context. That is precisely why businesses should not rely on assumptions such as “nothing is binding until the PDF is signed” unless their communications and process consistently say so.
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GQ Law provides senior commercial legal support across contracts, governance, regulatory risk and fractional general counsel work.
Discuss a matterGeneral information only. It is not legal advice and should not be relied on without considering the facts and applicable law.