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When the offer to purchase is non-binding

The recent High Court case of Cooper v Clark shows how vital it is to ensure that any amendments have actually been agreed to by both seller and purchaser, according to MC van der Berg Attorneys.

Facts of the case

A purchaser offered R6,3m for a property. The seller signed the offer to purchase in “acceptance”, but conditionally, with changes to clauses relating to inspection of the property by a building inspector.

The purchaser, seeing these alterations only after paying a 10% deposit, rejected the amendments and demanded her deposit back.

The court held that the seller had to prove that the purchaser had agreed to the written contract “in its final form”.

Conditional acceptance of an offer amounts to either:

  • a rejection of the offer, or
  • a counter-offer.

On the facts of this case, the seller’s alterations were material and amounted to a counter-offer which was never accepted by the purchaser. There was therefore no sale.

The lesson to be learned is to make sure that any changes to sale documents correctly reflect your agreement, and that both parties sign or initial when changes are made.

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