MANY persons, when they think about entering into a contract, think of pages and pages of formal legal documents riddled with ‘legalese’ and jargon not understandable to the ordinary man.

However, for most types of contracts a written document is not required for the contract to be valid. To establish that most contracts have been validly created, the common law establishes that you only need to show that there has been:

(a) offer — a willingness expressed to another to enter into a binding contract when it is accepted by that other person.

(b) acceptance — a final and unqualified agreement to the offer communicated to the person making the offer

(c) consideration — the price paid to the person making the offer, such as a promise to do something or payment of money (consideration is not, however, required where the contract is made by deed).

(d) intention to create legal relations — an objective assessment of the circumstances to determine that the parties mutually intended to be bound by the agreement

(e) certainty — the terms of the agreement are clear and not vague or incomplete

(f) capacity — each party has the legal ability to enter into the contract

Generally, everyone is presumed to be able to contract but this presumption may be rebutted in the case of a person under the age of 18 or someone who is mentally incapacitated

(g) authority — if the contract is being entered into on behalf of someone else, that person (agent) has, or appears to have, the authority to do so.

Contracts, therefore, can generally be created orally, by conduct, or in writing — and there are no formal requirements needed for the contract to be valid, unless imposed by statute (for example, when dealing with transfers or trusts of real property or granting security interests over collateral not in the possession of the secured creditor). Even where the contract is required to be in writing, in many instances there is no requirement that the written documents must take any particular form (though it may need to contain prescribed information).

So, what does that mean, particularly in this information age that we live in?

It means that not only can you be found to have entered into a legally binding contract based on just your conduct, but those WhatsApp exchanges discussing and settling the arrangements can be found to be terms of the contract. Although, at one point, WhatsApp may have been considered a purely social platform through which no one intends to create legal relations (and so one of the key elements for the creation of a contract by those means may then have been thought to be missing), this may no longer be our reality. The WhatsApp Business platform is intended for the conduct of business, and even exchanges outside of the business platform may, based on the circumstances, be able to demonstrate that it was being used with an intention to create legal relations. Think twice, even, about the use of emojis in that text message as the emoji used may also serve to convey a binding message. Think, for example, of that “thumbs up” emoji. It may signal acceptance where the circumstances suggest that if looked at objectively, it shows an intention to accept the terms of the offer.

So, what does that mean for you?

• Be very careful in how you do business over social media — ensure that your business has a workable social media policy.

• Ensure that your clients/customers know that communication via WhatsApp remains “subject to contract”.

• Have clear, written contracts so that you are not forced to rely on oral contracts or contracts entered into by conduct.

• Be sure to share with your attorneys if you (or any of your employees or agents) have been engaging with the client/customer via social media regarding the transaction

• Consider providing in your written contracts how they may be varied (preferably in writing signed by the parties) and that the written terms of the contract override any prior oral or other communication between the parties regarding the subject matter of the contract.

Contracts do not need to be filled with legalese to be effective, but it is best to get proper legal assistance to ensure that your contracts are carefully drafted to meet the circumstances and provide you with the protection that you need against unanticipated risks.

Hilary Reid is a partner at Myers, Fletcher & Gordon and is a member of the firm’s Commercial Department. Hilary may be contacted via hilary.reid@mfg.com.jm or through the firm’s website at www.myersfletcher.com.