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HH117-09 - MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA

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Law of Contract-viz specific performance re specific performance ex contractu.
Law of Contract-viz purchase and sale re quotations.
Procedural Law-viz rules of evidence re documentary evidence.
Law of Contract-viz purchase and sale re orders.
Procedural Law-viz rules of evidence re findings of fact iro witness testimony.
Law of Contract-viz variation of contracts.
Law of Contract-viz alteration of agreements.
Procedural Law-viz rules of evidence re findings of fact iro candidness with the court.
Procedural Law-viz rules of evidence re findings of fact iro being candid with the court.
Procedural Law-viz rules of evidence re improbable evidence.
Procedural Law-viz rules of evidence re evidence on behalf of a corporate entity iro institutional memory.
Procedural Law-viz rules of evidence re corroborative evidence.
Law of Contract-viz essential elements re offer and acceptance iro invitation to treat.
Law of Contract-viz essential elements re intent iro invitation to treat.
Law of Contract-viz essential elements re animus contrahendi iro invitation to treat.
Procedural Law-viz rules of evidence re onus iro burden of proof.
Procedural Law-viz rules of evidence re onus iro standard of proof.
Law of Contract-viz essential elements re consensus ad idem.
Law of Contract-viz essential elements re consensus ad idem iro offer and acceptance.
Procedural Law-viz affidavits re founding affidavit iro the principle that a case stands or falls on the founding affidavit.
Procedural Law-viz affidavits re founding affidavit iro the rule that a case stands or falls on the founding affidavit.
Law of Contract-viz Deed of Settlement re compromise agreement iro waiver of contractual rights.
Law of Contract-viz consensus ad idem re offer and acceptance iro counter offer.

Specific Performance re: Approach, Impossibility of Performance and the Exceptio Non Adimpleti Contractus

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture.

In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that whilst he had performed his side of the bargain, by paying the agreed price, the defendants, in breach of the agreement, had failed to deliver all the items contracted for leaving the items forming the subject matter of this suit outstanding. In particular, the plaintiff averred that, in terms of the agreement between the parties, the defendants would manufacture and deliver a 7 piece dinning room suite, a side serve, a 3 piece coffee table set, a 2 piece side board, a 3 piece room divider and a wall mirror. In breach of the agreement, the defendants failed to deliver the side board, the room divider and the wall mirror.

The suit was defended.

In its plea, the first defendant averred that the plaintiff made inquiries about the cost of items he required and was given a quotation which was valid for a limited time. He then made payment on the quotation outside the lifetime of the quotation, and without first making reference to the defendant, with the result that the amount he paid was only sufficient for the manufacture of the items that were delivered to him.

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were;

(a) Whether the plaintiff is owed the outstanding items of furniture; and

(b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

The matter was thus set down for trial before me.

At the trial, the plaintiff gave evidence. His evidence was as follows. He is a businessman. In December 2007, he visited the first defendant's factory. He was taken around the place and was shown other items that the defendant had manufactured. He requested the manager to tailor-make the items that he required. To that end, he arranged for the manager to visit his flat and take some measurements.

This was duly done.

The manager left him with catalogues from which he and his wife could select what they thought was suitable. He was given a quotation upon which he successfully negotiated a discount. He was also given a Bank account into which he was to deposit the amount reflected on the quotation. He told the defendants that he was going to dispose of some shares and that this would take some time. The second defendant assured him that this would not pose any problems. As soon as his shares were sold, he deposited the amount reflected on the quotation into the defendant's Bank account. He paid the deposit a week or two after the date appearing on the quotation. When his shares were sold, he told the defendant that he was going to make the transfer and wanted to know whether there had been any changes to the prices. The second defendant assured him that there had been no changes and there would be no problem with his deposit.

Apart from the quotation, nothing else was reduced to writing as between the parties. The witness was shown a copy of the quotation which he identified. Same was adduced into evidence.

The plaintiff proceeded to testify that, after some arguments, the defendant delivered part of the ordered furniture leaving the items in dispute outstanding. He demanded for the delivery of the remaining items, firstly, by word of mouth and then by a letter of demand.

In conclusion, the plaintiff testified that at not time did he discuss the issue of revisiting the pricing of the order as suggested by the defendants. He insisted that, after paying the amount reflected on the quotation, he was entitled to delivery of the outstanding items even if he paid outside the lifetime of the quotation as he had advised the defendants that he needed time to sell his shares.

The witness impressed me as an articulate and confident man. He was very clear as to what the defendants were obliged to do under the contract and was keen to see them held strictly to the written terms of the contract, an attitude that evoked in me memories of passages in the Shakespearian play; Merchant of Venice.

The witness was wordy in his responses to questions put to him under cross-examination and would at all times maintain his stance that he performed his side of the bargain by paying the contract price in full.

In my view, the factual issue that falls for determination in this suit is whether the parties varied the written terms of the quotation to allow the plaintiff to make payment of the quoted price outside the lifetime of the quotation.

On this point, the plaintiff did not testify with his characteristic clarity and confidence. His evidence, as detailed above, was to the effect that that he spoke to the second defendant when his shares had been sold and asked him if there were any changes to the quotation. He was told that there were none.

I did not believe the plaintiff in this regard.

Firstly, I did not believe him when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed.

Secondly, it is highly unlikely that the second defendant, when and if telephoned, would have advised the plaintiff that there were no changes in the price especially in the environment during which the contract was concluded. The defendants testified that their quotations were now valid for 3 days only as prices were constantly changing. It is therefore highly improbable that, after two or three weeks, prices on the quotation had remained static.

After testifying, the plaintiff called one Custon Muchepa (“Custon”). Custon used to work for the defendants and was the first defendant's manager at the time. He is the one who prepared and issued the plaintiff with the quotation. On a date he did not give, the plaintiff telephoned him to advise that he had made payment on the quotation. He then received a call from the workshop requesting him to prepare a bill of materials for work on the plaintiff's order to begin. He confirmed that part of the plaintiff's order was delivered and the balance was promised. The balance of the order was never delivered. Out of frustration and other misunderstandings, he left the first defendant's employment before delivery of the remaining items had been made.

On the material dispute of fact between the parties, Custon Muchepa did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

After the evidence of this witness, the plaintiff closed his case.

The second defendant gave evidence on his own behalf and on behalf of the first defendant. His evidence was as follows;

He is a Director of the first defendant. He recalls that the plaintiff came to the defendant's workshop where he was given a quotation. The quotation was supposed to be valid for three days. The plaintiff was also given the first defendant's account number for the purposes of making payment. Prior to the parties concluding the transaction, the plaintiff informed him that he had funds that were maturing sometime which he would use to fund the contract. He then left his manager to prepare the quotation. After three weeks, he received a report from his manager that the plaintiff had made payment, by direct deposit, into the first defendant's account. He checked the account and confirmed the deposit. He then telephoned the plaintiff and confirmed the deposit. He however advised the plaintiff that the deposit was now insufficient to cover the order. The plaintiff, in turn, advised him that he had no further funds and that the parties should re-negotiate. The first defendant started manufacturing the items of furniture that the parties had agreed were equivalent to the deposit. When the plaintiff was advised of this, he said the parties should discuss the issue further. The defendants delivered the items that were equivalent to the deposit. After delivery, he telephoned the plaintiff for a meeting. The plaintiff insisted that he had paid for the entire order and demanded delivery of the remaining items.

The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross-examination. He impressed me a being honest and truthful.

I particularly believed him when he testified that he only received the report that payment had been made from Custon Muchepa, meaning that he did not speak to the plaintiff before the plaintiff made the deposit. He thus did not agree to extend the validity of the quotation before payment was made. His evidence in this regard gains corroboration from the testimony of Ronald Mpopoma who testified after him.

Ronald Mpopoma's evidence was to the following effect;

He is son to the last witness and works for the first defendant as Clerk. He confirmed that ordinarily, the defendants were giving quotations valid for only three days. He thus expected the plaintiff to make a payment after three days of obtaining the quotation. Instead, he received a report, after three weeks, that the plaintiff had made payment on the quotation. The report was made to him by Custon Muchepa. He then telephoned the plaintiff to come and discuss the issue. At the meeting, the plaintiff was advised that his deposit was insufficient to meet his order. It is at that stage that the parties agreed that the defendants would only manufacture those items that were equivalent to the amount of the deposit. The parties were to further agree on the remaining items. On that understanding, the witness gave the word for work to commence on the plaintiff's order.

Regarding Custon Muchepa, the witness testified that he fired him after he realized that there was an unhealthy relationship between him and the plaintiff and that the two may have diverted the defendants' jobs to the competition.

In my view, the witness gave evidence that was largely common cause save for the information on how Custon Muchepa left employment. Regarding the material issue in dispute, he was clear that the plaintiff was made aware of the insufficiency of his deposit when such was made. In this regard, he corroborates the evidence of the second defendant in a material respect.

After this witness, the defendants closed their case.

In his closing submissions, counsel for the plaintiff correctly submitted, in my view, that the first issue I have to determine is whether or not the parties had a contract, and, if so, what the terms of the contract were.

In answer to the questions posed by the first issue, he submitted that the parties had a verbal contract for the manufacture of the furniture items specified in the quotation and for the price stipulated in the quotation.

I am unable to agree that the parties unconditionally entered into a contract for the manufacture of the furniture items listed in the quotation. In my view, the quotation that was issued to the plaintiff by the defendants was an invitation to treat. It was the offer to do business with the plaintiff. The terms of the offer were endorsed on the face of the quotation.

It may be pertinent, at this stage, to observe that while the defendants testified that at the time they were issuing quotations valid for only three days, in casu, the quotation clearly stated on its face that it would hold for a week. Thus, notwithstanding their policy in this regard, they were bound by the period given on the face of the quotation.

In my view, the plaintiff could have validly made payment within one week of the quotation and such payment would have bound the defendants.

The plaintiff however did not make payment within one week. It is not clear when he made payment. As observed above, he has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

The plaintiff has approached the court ex contractu. He alleges that he had a binding contract with the defendants. He further alleges that while he performed his side of the bargain, the defendants are in breach and should be compelled to perform.

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

In casu, it is common cause that the quotation given to the plaintiff constitutes the offer that was made by the defendants.

It is the settled position in the law of contract that an offer can lapse through the effluxion of time. This means that after the time set in the offer for acceptance has expired, the offer is no longer open to acceptance for the birthing of a valid contract. The point was settled in Laws v Rutherford 1924 AD 261 and has held since. At 262, INNES CJ had this to say:

“Speaking generally, when the acceptance of an offer is conditioned to be made within a time limit or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

In casu, the offer was valid for one week. The one week lapsed before the plaintiff had accepted it. His purported acceptance of the offer, after the one week, was of no force and effect.

Put differently and conversely, acceptance of an offer must always correspond to the offer. If it does not, it constitutes a counter offer and no valid contract is birthed on the original offer.

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found above that I do not believe his testimony in this regard. There was no such variation. His offer of the defendant's offer had to be within a week of the offer. It was not.

Further, he has not sought to argue that the defendants accepted his counter-offer to pay the price at his own time.

In the circumstances, it is my finding that the plaintiff has failed to establish the contract that he seeks to rely on for an order compelling the defendants to deliver the remaining items of furniture. Payment of the price on the quotation made when the offer was no longer open could not bring about an enforceable contract between the parties.

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendants costs.

Quotations and Orders

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture.

In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that whilst he had performed his side of the bargain, by paying the agreed price, the defendants, in breach of the agreement, had failed to deliver all the items contracted for leaving the items forming the subject matter of this suit outstanding. In particular, the plaintiff averred that, in terms of the agreement between the parties, the defendants would manufacture and deliver a 7 piece dinning room suite, a side serve, a 3 piece coffee table set, a 2 piece side board, a 3 piece room divider and a wall mirror. In breach of the agreement, the defendants failed to deliver the side board, the room divider and the wall mirror.

The suit was defended.

In its plea, the first defendant averred that the plaintiff made inquiries about the cost of items he required and was given a quotation which was valid for a limited time. He then made payment on the quotation outside the lifetime of the quotation, and without first making reference to the defendant, with the result that the amount he paid was only sufficient for the manufacture of the items that were delivered to him.

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were;

(a) Whether the plaintiff is owed the outstanding items of furniture; and

(b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

The matter was thus set down for trial before me.

At the trial, the plaintiff gave evidence. His evidence was as follows. He is a businessman. In December 2007, he visited the first defendant's factory. He was taken around the place and was shown other items that the defendant had manufactured. He requested the manager to tailor-make the items that he required. To that end, he arranged for the manager to visit his flat and take some measurements.

This was duly done.

The manager left him with catalogues from which he and his wife could select what they thought was suitable. He was given a quotation upon which he successfully negotiated a discount. He was also given a Bank account into which he was to deposit the amount reflected on the quotation. He told the defendants that he was going to dispose of some shares and that this would take some time. The second defendant assured him that this would not pose any problems. As soon as his shares were sold, he deposited the amount reflected on the quotation into the defendant's Bank account. He paid the deposit a week or two after the date appearing on the quotation. When his shares were sold, he told the defendant that he was going to make the transfer and wanted to know whether there had been any changes to the prices. The second defendant assured him that there had been no changes and there would be no problem with his deposit.

Apart from the quotation, nothing else was reduced to writing as between the parties. The witness was shown a copy of the quotation which he identified. Same was adduced into evidence.

The plaintiff proceeded to testify that, after some arguments, the defendant delivered part of the ordered furniture leaving the items in dispute outstanding. He demanded for the delivery of the remaining items, firstly, by word of mouth and then by a letter of demand.

In conclusion, the plaintiff testified that at not time did he discuss the issue of revisiting the pricing of the order as suggested by the defendants. He insisted that, after paying the amount reflected on the quotation, he was entitled to delivery of the outstanding items even if he paid outside the lifetime of the quotation as he had advised the defendants that he needed time to sell his shares.

The witness impressed me as an articulate and confident man. He was very clear as to what the defendants were obliged to do under the contract and was keen to see them held strictly to the written terms of the contract, an attitude that evoked in me memories of passages in the Shakespearian play; Merchant of Venice.

The witness was wordy in his responses to questions put to him under cross-examination and would at all times maintain his stance that he performed his side of the bargain by paying the contract price in full.

In my view, the factual issue that falls for determination in this suit is whether the parties varied the written terms of the quotation to allow the plaintiff to make payment of the quoted price outside the lifetime of the quotation.

On this point, the plaintiff did not testify with his characteristic clarity and confidence. His evidence, as detailed above, was to the effect that that he spoke to the second defendant when his shares had been sold and asked him if there were any changes to the quotation. He was told that there were none.

I did not believe the plaintiff in this regard.

Firstly, I did not believe him when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed.

Secondly, it is highly unlikely that the second defendant, when and if telephoned, would have advised the plaintiff that there were no changes in the price especially in the environment during which the contract was concluded. The defendants testified that their quotations were now valid for 3 days only as prices were constantly changing. It is therefore highly improbable that, after two or three weeks, prices on the quotation had remained static.

After testifying, the plaintiff called one Custon Muchepa (“Custon”). Custon used to work for the defendants and was the first defendant's manager at the time. He is the one who prepared and issued the plaintiff with the quotation. On a date he did not give, the plaintiff telephoned him to advise that he had made payment on the quotation. He then received a call from the workshop requesting him to prepare a bill of materials for work on the plaintiff's order to begin. He confirmed that part of the plaintiff's order was delivered and the balance was promised. The balance of the order was never delivered. Out of frustration and other misunderstandings, he left the first defendant's employment before delivery of the remaining items had been made.

On the material dispute of fact between the parties, Custon Muchepa did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

After the evidence of this witness, the plaintiff closed his case.

The second defendant gave evidence on his own behalf and on behalf of the first defendant. His evidence was as follows;

He is a Director of the first defendant. He recalls that the plaintiff came to the defendant's workshop where he was given a quotation. The quotation was supposed to be valid for three days. The plaintiff was also given the first defendant's account number for the purposes of making payment. Prior to the parties concluding the transaction, the plaintiff informed him that he had funds that were maturing sometime which he would use to fund the contract. He then left his manager to prepare the quotation. After three weeks, he received a report from his manager that the plaintiff had made payment, by direct deposit, into the first defendant's account. He checked the account and confirmed the deposit. He then telephoned the plaintiff and confirmed the deposit. He however advised the plaintiff that the deposit was now insufficient to cover the order. The plaintiff, in turn, advised him that he had no further funds and that the parties should re-negotiate. The first defendant started manufacturing the items of furniture that the parties had agreed were equivalent to the deposit. When the plaintiff was advised of this, he said the parties should discuss the issue further. The defendants delivered the items that were equivalent to the deposit. After delivery, he telephoned the plaintiff for a meeting. The plaintiff insisted that he had paid for the entire order and demanded delivery of the remaining items.

The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross-examination. He impressed me a being honest and truthful.

I particularly believed him when he testified that he only received the report that payment had been made from Custon Muchepa, meaning that he did not speak to the plaintiff before the plaintiff made the deposit. He thus did not agree to extend the validity of the quotation before payment was made. His evidence in this regard gains corroboration from the testimony of Ronald Mpopoma who testified after him.

Ronald Mpopoma's evidence was to the following effect;

He is son to the last witness and works for the first defendant as Clerk. He confirmed that ordinarily, the defendants were giving quotations valid for only three days. He thus expected the plaintiff to make a payment after three days of obtaining the quotation. Instead, he received a report, after three weeks, that the plaintiff had made payment on the quotation. The report was made to him by Custon Muchepa. He then telephoned the plaintiff to come and discuss the issue. At the meeting, the plaintiff was advised that his deposit was insufficient to meet his order. It is at that stage that the parties agreed that the defendants would only manufacture those items that were equivalent to the amount of the deposit. The parties were to further agree on the remaining items. On that understanding, the witness gave the word for work to commence on the plaintiff's order.

Regarding Custon Muchepa, the witness testified that he fired him after he realized that there was an unhealthy relationship between him and the plaintiff and that the two may have diverted the defendants' jobs to the competition.

In my view, the witness gave evidence that was largely common cause save for the information on how Custon Muchepa left employment. Regarding the material issue in dispute, he was clear that the plaintiff was made aware of the insufficiency of his deposit when such was made. In this regard, he corroborates the evidence of the second defendant in a material respect.

After this witness, the defendants closed their case.

In his closing submissions, counsel for the plaintiff correctly submitted, in my view, that the first issue I have to determine is whether or not the parties had a contract, and, if so, what the terms of the contract were.

In answer to the questions posed by the first issue, he submitted that the parties had a verbal contract for the manufacture of the furniture items specified in the quotation and for the price stipulated in the quotation.

I am unable to agree that the parties unconditionally entered into a contract for the manufacture of the furniture items listed in the quotation. In my view, the quotation that was issued to the plaintiff by the defendants was an invitation to treat. It was the offer to do business with the plaintiff. The terms of the offer were endorsed on the face of the quotation.

It may be pertinent, at this stage, to observe that while the defendants testified that at the time they were issuing quotations valid for only three days, in casu, the quotation clearly stated on its face that it would hold for a week. Thus, notwithstanding their policy in this regard, they were bound by the period given on the face of the quotation.

In my view, the plaintiff could have validly made payment within one week of the quotation and such payment would have bound the defendants.

The plaintiff however did not make payment within one week. It is not clear when he made payment. As observed above, he has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

The plaintiff has approached the court ex contractu. He alleges that he had a binding contract with the defendants. He further alleges that while he performed his side of the bargain, the defendants are in breach and should be compelled to perform.

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

In casu, it is common cause that the quotation given to the plaintiff constitutes the offer that was made by the defendants.

It is the settled position in the law of contract that an offer can lapse through the effluxion of time. This means that after the time set in the offer for acceptance has expired, the offer is no longer open to acceptance for the birthing of a valid contract. The point was settled in Laws v Rutherford 1924 AD 261 and has held since. At 262, INNES CJ had this to say:

“Speaking generally, when the acceptance of an offer is conditioned to be made within a time limit or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

In casu, the offer was valid for one week. The one week lapsed before the plaintiff had accepted it. His purported acceptance of the offer, after the one week, was of no force and effect.

Put differently and conversely, acceptance of an offer must always correspond to the offer. If it does not, it constitutes a counter offer and no valid contract is birthed on the original offer.

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found above that I do not believe his testimony in this regard. There was no such variation. His offer of the defendant's offer had to be within a week of the offer. It was not.

Further, he has not sought to argue that the defendants accepted his counter-offer to pay the price at his own time.

In the circumstances, it is my finding that the plaintiff has failed to establish the contract that he seeks to rely on for an order compelling the defendants to deliver the remaining items of furniture. Payment of the price on the quotation made when the offer was no longer open could not bring about an enforceable contract between the parties.

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendants costs.

Variation of Contracts re: Approach and Resolution of Contractual Lacunas

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture.

In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that whilst he had performed his side of the bargain, by paying the agreed price, the defendants, in breach of the agreement, had failed to deliver all the items contracted for leaving the items forming the subject matter of this suit outstanding. In particular, the plaintiff averred that, in terms of the agreement between the parties, the defendants would manufacture and deliver a 7 piece dinning room suite, a side serve, a 3 piece coffee table set, a 2 piece side board, a 3 piece room divider and a wall mirror. In breach of the agreement, the defendants failed to deliver the side board, the room divider and the wall mirror.

The suit was defended.

In its plea, the first defendant averred that the plaintiff made inquiries about the cost of items he required and was given a quotation which was valid for a limited time. He then made payment on the quotation outside the lifetime of the quotation, and without first making reference to the defendant, with the result that the amount he paid was only sufficient for the manufacture of the items that were delivered to him.

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were;

(a) Whether the plaintiff is owed the outstanding items of furniture; and

(b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

The matter was thus set down for trial before me.

At the trial, the plaintiff gave evidence. His evidence was as follows. He is a businessman. In December 2007, he visited the first defendant's factory. He was taken around the place and was shown other items that the defendant had manufactured. He requested the manager to tailor-make the items that he required. To that end, he arranged for the manager to visit his flat and take some measurements.

This was duly done.

The manager left him with catalogues from which he and his wife could select what they thought was suitable. He was given a quotation upon which he successfully negotiated a discount. He was also given a Bank account into which he was to deposit the amount reflected on the quotation. He told the defendants that he was going to dispose of some shares and that this would take some time. The second defendant assured him that this would not pose any problems. As soon as his shares were sold, he deposited the amount reflected on the quotation into the defendant's Bank account. He paid the deposit a week or two after the date appearing on the quotation. When his shares were sold, he told the defendant that he was going to make the transfer and wanted to know whether there had been any changes to the prices. The second defendant assured him that there had been no changes and there would be no problem with his deposit.

Apart from the quotation, nothing else was reduced to writing as between the parties. The witness was shown a copy of the quotation which he identified. Same was adduced into evidence.

The plaintiff proceeded to testify that, after some arguments, the defendant delivered part of the ordered furniture leaving the items in dispute outstanding. He demanded for the delivery of the remaining items, firstly, by word of mouth and then by a letter of demand.

In conclusion, the plaintiff testified that at not time did he discuss the issue of revisiting the pricing of the order as suggested by the defendants. He insisted that, after paying the amount reflected on the quotation, he was entitled to delivery of the outstanding items even if he paid outside the lifetime of the quotation as he had advised the defendants that he needed time to sell his shares.

The witness impressed me as an articulate and confident man. He was very clear as to what the defendants were obliged to do under the contract and was keen to see them held strictly to the written terms of the contract, an attitude that evoked in me memories of passages in the Shakespearian play; Merchant of Venice.

The witness was wordy in his responses to questions put to him under cross-examination and would at all times maintain his stance that he performed his side of the bargain by paying the contract price in full.

In my view, the factual issue that falls for determination in this suit is whether the parties varied the written terms of the quotation to allow the plaintiff to make payment of the quoted price outside the lifetime of the quotation.

On this point, the plaintiff did not testify with his characteristic clarity and confidence. His evidence, as detailed above, was to the effect that that he spoke to the second defendant when his shares had been sold and asked him if there were any changes to the quotation. He was told that there were none.

I did not believe the plaintiff in this regard.

Firstly, I did not believe him when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed.

Secondly, it is highly unlikely that the second defendant, when and if telephoned, would have advised the plaintiff that there were no changes in the price especially in the environment during which the contract was concluded. The defendants testified that their quotations were now valid for 3 days only as prices were constantly changing. It is therefore highly improbable that, after two or three weeks, prices on the quotation had remained static.

After testifying, the plaintiff called one Custon Muchepa (“Custon”). Custon used to work for the defendants and was the first defendant's manager at the time. He is the one who prepared and issued the plaintiff with the quotation. On a date he did not give, the plaintiff telephoned him to advise that he had made payment on the quotation. He then received a call from the workshop requesting him to prepare a bill of materials for work on the plaintiff's order to begin. He confirmed that part of the plaintiff's order was delivered and the balance was promised. The balance of the order was never delivered. Out of frustration and other misunderstandings, he left the first defendant's employment before delivery of the remaining items had been made.

On the material dispute of fact between the parties, Custon Muchepa did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

After the evidence of this witness, the plaintiff closed his case.

The second defendant gave evidence on his own behalf and on behalf of the first defendant. His evidence was as follows;

He is a Director of the first defendant. He recalls that the plaintiff came to the defendant's workshop where he was given a quotation. The quotation was supposed to be valid for three days. The plaintiff was also given the first defendant's account number for the purposes of making payment. Prior to the parties concluding the transaction, the plaintiff informed him that he had funds that were maturing sometime which he would use to fund the contract. He then left his manager to prepare the quotation. After three weeks, he received a report from his manager that the plaintiff had made payment, by direct deposit, into the first defendant's account. He checked the account and confirmed the deposit. He then telephoned the plaintiff and confirmed the deposit. He however advised the plaintiff that the deposit was now insufficient to cover the order. The plaintiff, in turn, advised him that he had no further funds and that the parties should re-negotiate. The first defendant started manufacturing the items of furniture that the parties had agreed were equivalent to the deposit. When the plaintiff was advised of this, he said the parties should discuss the issue further. The defendants delivered the items that were equivalent to the deposit. After delivery, he telephoned the plaintiff for a meeting. The plaintiff insisted that he had paid for the entire order and demanded delivery of the remaining items.

The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross-examination. He impressed me a being honest and truthful.

I particularly believed him when he testified that he only received the report that payment had been made from Custon Muchepa, meaning that he did not speak to the plaintiff before the plaintiff made the deposit. He thus did not agree to extend the validity of the quotation before payment was made. His evidence in this regard gains corroboration from the testimony of Ronald Mpopoma who testified after him.

Ronald Mpopoma's evidence was to the following effect;

He is son to the last witness and works for the first defendant as Clerk. He confirmed that ordinarily, the defendants were giving quotations valid for only three days. He thus expected the plaintiff to make a payment after three days of obtaining the quotation. Instead, he received a report, after three weeks, that the plaintiff had made payment on the quotation. The report was made to him by Custon Muchepa. He then telephoned the plaintiff to come and discuss the issue. At the meeting, the plaintiff was advised that his deposit was insufficient to meet his order. It is at that stage that the parties agreed that the defendants would only manufacture those items that were equivalent to the amount of the deposit. The parties were to further agree on the remaining items. On that understanding, the witness gave the word for work to commence on the plaintiff's order.

Regarding Custon Muchepa, the witness testified that he fired him after he realized that there was an unhealthy relationship between him and the plaintiff and that the two may have diverted the defendants' jobs to the competition.

In my view, the witness gave evidence that was largely common cause save for the information on how Custon Muchepa left employment. Regarding the material issue in dispute, he was clear that the plaintiff was made aware of the insufficiency of his deposit when such was made. In this regard, he corroborates the evidence of the second defendant in a material respect.

After this witness, the defendants closed their case.

In his closing submissions, counsel for the plaintiff correctly submitted, in my view, that the first issue I have to determine is whether or not the parties had a contract, and, if so, what the terms of the contract were.

In answer to the questions posed by the first issue, he submitted that the parties had a verbal contract for the manufacture of the furniture items specified in the quotation and for the price stipulated in the quotation.

I am unable to agree that the parties unconditionally entered into a contract for the manufacture of the furniture items listed in the quotation. In my view, the quotation that was issued to the plaintiff by the defendants was an invitation to treat. It was the offer to do business with the plaintiff. The terms of the offer were endorsed on the face of the quotation.

It may be pertinent, at this stage, to observe that while the defendants testified that at the time they were issuing quotations valid for only three days, in casu, the quotation clearly stated on its face that it would hold for a week. Thus, notwithstanding their policy in this regard, they were bound by the period given on the face of the quotation.

In my view, the plaintiff could have validly made payment within one week of the quotation and such payment would have bound the defendants.

The plaintiff however did not make payment within one week. It is not clear when he made payment. As observed above, he has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

The plaintiff has approached the court ex contractu. He alleges that he had a binding contract with the defendants. He further alleges that while he performed his side of the bargain, the defendants are in breach and should be compelled to perform.

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

In casu, it is common cause that the quotation given to the plaintiff constitutes the offer that was made by the defendants.

It is the settled position in the law of contract that an offer can lapse through the effluxion of time. This means that after the time set in the offer for acceptance has expired, the offer is no longer open to acceptance for the birthing of a valid contract. The point was settled in Laws v Rutherford 1924 AD 261 and has held since. At 262, INNES CJ had this to say:

“Speaking generally, when the acceptance of an offer is conditioned to be made within a time limit or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

In casu, the offer was valid for one week. The one week lapsed before the plaintiff had accepted it. His purported acceptance of the offer, after the one week, was of no force and effect.

Put differently and conversely, acceptance of an offer must always correspond to the offer. If it does not, it constitutes a counter offer and no valid contract is birthed on the original offer.

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found above that I do not believe his testimony in this regard. There was no such variation. His offer of the defendant's offer had to be within a week of the offer. It was not.

Further, he has not sought to argue that the defendants accepted his counter-offer to pay the price at his own time.

In the circumstances, it is my finding that the plaintiff has failed to establish the contract that he seeks to rely on for an order compelling the defendants to deliver the remaining items of furniture. Payment of the price on the quotation made when the offer was no longer open could not bring about an enforceable contract between the parties.

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendants costs.

Intent or Animus Contrahendi re: Deemed, Implied, Tacit, Unsigned Agreements or Informal Contracts

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture.

In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that whilst he had performed his side of the bargain, by paying the agreed price, the defendants, in breach of the agreement, had failed to deliver all the items contracted for leaving the items forming the subject matter of this suit outstanding. In particular, the plaintiff averred that, in terms of the agreement between the parties, the defendants would manufacture and deliver a 7 piece dinning room suite, a side serve, a 3 piece coffee table set, a 2 piece side board, a 3 piece room divider and a wall mirror. In breach of the agreement, the defendants failed to deliver the side board, the room divider and the wall mirror.

The suit was defended.

In its plea, the first defendant averred that the plaintiff made inquiries about the cost of items he required and was given a quotation which was valid for a limited time. He then made payment on the quotation outside the lifetime of the quotation, and without first making reference to the defendant, with the result that the amount he paid was only sufficient for the manufacture of the items that were delivered to him.

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were;

(a) Whether the plaintiff is owed the outstanding items of furniture; and

(b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

The matter was thus set down for trial before me.

At the trial, the plaintiff gave evidence. His evidence was as follows. He is a businessman. In December 2007, he visited the first defendant's factory. He was taken around the place and was shown other items that the defendant had manufactured. He requested the manager to tailor-make the items that he required. To that end, he arranged for the manager to visit his flat and take some measurements.

This was duly done.

The manager left him with catalogues from which he and his wife could select what they thought was suitable. He was given a quotation upon which he successfully negotiated a discount. He was also given a Bank account into which he was to deposit the amount reflected on the quotation. He told the defendants that he was going to dispose of some shares and that this would take some time. The second defendant assured him that this would not pose any problems. As soon as his shares were sold, he deposited the amount reflected on the quotation into the defendant's Bank account. He paid the deposit a week or two after the date appearing on the quotation. When his shares were sold, he told the defendant that he was going to make the transfer and wanted to know whether there had been any changes to the prices. The second defendant assured him that there had been no changes and there would be no problem with his deposit.

Apart from the quotation, nothing else was reduced to writing as between the parties. The witness was shown a copy of the quotation which he identified. Same was adduced into evidence.

The plaintiff proceeded to testify that, after some arguments, the defendant delivered part of the ordered furniture leaving the items in dispute outstanding. He demanded for the delivery of the remaining items, firstly, by word of mouth and then by a letter of demand.

In conclusion, the plaintiff testified that at not time did he discuss the issue of revisiting the pricing of the order as suggested by the defendants. He insisted that, after paying the amount reflected on the quotation, he was entitled to delivery of the outstanding items even if he paid outside the lifetime of the quotation as he had advised the defendants that he needed time to sell his shares.

The witness impressed me as an articulate and confident man. He was very clear as to what the defendants were obliged to do under the contract and was keen to see them held strictly to the written terms of the contract, an attitude that evoked in me memories of passages in the Shakespearian play; Merchant of Venice.

The witness was wordy in his responses to questions put to him under cross-examination and would at all times maintain his stance that he performed his side of the bargain by paying the contract price in full.

In my view, the factual issue that falls for determination in this suit is whether the parties varied the written terms of the quotation to allow the plaintiff to make payment of the quoted price outside the lifetime of the quotation.

On this point, the plaintiff did not testify with his characteristic clarity and confidence. His evidence, as detailed above, was to the effect that that he spoke to the second defendant when his shares had been sold and asked him if there were any changes to the quotation. He was told that there were none.

I did not believe the plaintiff in this regard.

Firstly, I did not believe him when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed.

Secondly, it is highly unlikely that the second defendant, when and if telephoned, would have advised the plaintiff that there were no changes in the price especially in the environment during which the contract was concluded. The defendants testified that their quotations were now valid for 3 days only as prices were constantly changing. It is therefore highly improbable that, after two or three weeks, prices on the quotation had remained static.

After testifying, the plaintiff called one Custon Muchepa (“Custon”). Custon used to work for the defendants and was the first defendant's manager at the time. He is the one who prepared and issued the plaintiff with the quotation. On a date he did not give, the plaintiff telephoned him to advise that he had made payment on the quotation. He then received a call from the workshop requesting him to prepare a bill of materials for work on the plaintiff's order to begin. He confirmed that part of the plaintiff's order was delivered and the balance was promised. The balance of the order was never delivered. Out of frustration and other misunderstandings, he left the first defendant's employment before delivery of the remaining items had been made.

On the material dispute of fact between the parties, Custon Muchepa did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

After the evidence of this witness, the plaintiff closed his case.

The second defendant gave evidence on his own behalf and on behalf of the first defendant. His evidence was as follows;

He is a Director of the first defendant. He recalls that the plaintiff came to the defendant's workshop where he was given a quotation. The quotation was supposed to be valid for three days. The plaintiff was also given the first defendant's account number for the purposes of making payment. Prior to the parties concluding the transaction, the plaintiff informed him that he had funds that were maturing sometime which he would use to fund the contract. He then left his manager to prepare the quotation. After three weeks, he received a report from his manager that the plaintiff had made payment, by direct deposit, into the first defendant's account. He checked the account and confirmed the deposit. He then telephoned the plaintiff and confirmed the deposit. He however advised the plaintiff that the deposit was now insufficient to cover the order. The plaintiff, in turn, advised him that he had no further funds and that the parties should re-negotiate. The first defendant started manufacturing the items of furniture that the parties had agreed were equivalent to the deposit. When the plaintiff was advised of this, he said the parties should discuss the issue further. The defendants delivered the items that were equivalent to the deposit. After delivery, he telephoned the plaintiff for a meeting. The plaintiff insisted that he had paid for the entire order and demanded delivery of the remaining items.

The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross-examination. He impressed me a being honest and truthful.

I particularly believed him when he testified that he only received the report that payment had been made from Custon Muchepa, meaning that he did not speak to the plaintiff before the plaintiff made the deposit. He thus did not agree to extend the validity of the quotation before payment was made. His evidence in this regard gains corroboration from the testimony of Ronald Mpopoma who testified after him.

Ronald Mpopoma's evidence was to the following effect;

He is son to the last witness and works for the first defendant as Clerk. He confirmed that ordinarily, the defendants were giving quotations valid for only three days. He thus expected the plaintiff to make a payment after three days of obtaining the quotation. Instead, he received a report, after three weeks, that the plaintiff had made payment on the quotation. The report was made to him by Custon Muchepa. He then telephoned the plaintiff to come and discuss the issue. At the meeting, the plaintiff was advised that his deposit was insufficient to meet his order. It is at that stage that the parties agreed that the defendants would only manufacture those items that were equivalent to the amount of the deposit. The parties were to further agree on the remaining items. On that understanding, the witness gave the word for work to commence on the plaintiff's order.

Regarding Custon Muchepa, the witness testified that he fired him after he realized that there was an unhealthy relationship between him and the plaintiff and that the two may have diverted the defendants' jobs to the competition.

In my view, the witness gave evidence that was largely common cause save for the information on how Custon Muchepa left employment. Regarding the material issue in dispute, he was clear that the plaintiff was made aware of the insufficiency of his deposit when such was made. In this regard, he corroborates the evidence of the second defendant in a material respect.

After this witness, the defendants closed their case.

In his closing submissions, counsel for the plaintiff correctly submitted, in my view, that the first issue I have to determine is whether or not the parties had a contract, and, if so, what the terms of the contract were.

In answer to the questions posed by the first issue, he submitted that the parties had a verbal contract for the manufacture of the furniture items specified in the quotation and for the price stipulated in the quotation.

I am unable to agree that the parties unconditionally entered into a contract for the manufacture of the furniture items listed in the quotation. In my view, the quotation that was issued to the plaintiff by the defendants was an invitation to treat. It was the offer to do business with the plaintiff. The terms of the offer were endorsed on the face of the quotation.

It may be pertinent, at this stage, to observe that while the defendants testified that at the time they were issuing quotations valid for only three days, in casu, the quotation clearly stated on its face that it would hold for a week. Thus, notwithstanding their policy in this regard, they were bound by the period given on the face of the quotation.

In my view, the plaintiff could have validly made payment within one week of the quotation and such payment would have bound the defendants.

The plaintiff however did not make payment within one week. It is not clear when he made payment. As observed above, he has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

The plaintiff has approached the court ex contractu. He alleges that he had a binding contract with the defendants. He further alleges that while he performed his side of the bargain, the defendants are in breach and should be compelled to perform.

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

In casu, it is common cause that the quotation given to the plaintiff constitutes the offer that was made by the defendants.

It is the settled position in the law of contract that an offer can lapse through the effluxion of time. This means that after the time set in the offer for acceptance has expired, the offer is no longer open to acceptance for the birthing of a valid contract. The point was settled in Laws v Rutherford 1924 AD 261 and has held since. At 262, INNES CJ had this to say:

“Speaking generally, when the acceptance of an offer is conditioned to be made within a time limit or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

In casu, the offer was valid for one week. The one week lapsed before the plaintiff had accepted it. His purported acceptance of the offer, after the one week, was of no force and effect.

Put differently and conversely, acceptance of an offer must always correspond to the offer. If it does not, it constitutes a counter offer and no valid contract is birthed on the original offer.

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found above that I do not believe his testimony in this regard. There was no such variation. His offer of the defendant's offer had to be within a week of the offer. It was not.

Further, he has not sought to argue that the defendants accepted his counter-offer to pay the price at his own time.

In the circumstances, it is my finding that the plaintiff has failed to establish the contract that he seeks to rely on for an order compelling the defendants to deliver the remaining items of furniture. Payment of the price on the quotation made when the offer was no longer open could not bring about an enforceable contract between the parties.

Consensus Ad Idem re: Offer and Acceptance, Counter-Offer and the Concept of Vinculum Juris

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture.

In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that whilst he had performed his side of the bargain, by paying the agreed price, the defendants, in breach of the agreement, had failed to deliver all the items contracted for leaving the items forming the subject matter of this suit outstanding. In particular, the plaintiff averred that, in terms of the agreement between the parties, the defendants would manufacture and deliver a 7 piece dinning room suite, a side serve, a 3 piece coffee table set, a 2 piece side board, a 3 piece room divider and a wall mirror. In breach of the agreement, the defendants failed to deliver the side board, the room divider and the wall mirror.

The suit was defended.

In its plea, the first defendant averred that the plaintiff made inquiries about the cost of items he required and was given a quotation which was valid for a limited time. He then made payment on the quotation outside the lifetime of the quotation, and without first making reference to the defendant, with the result that the amount he paid was only sufficient for the manufacture of the items that were delivered to him.

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were;

(a) Whether the plaintiff is owed the outstanding items of furniture; and

(b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

The matter was thus set down for trial before me.

At the trial, the plaintiff gave evidence. His evidence was as follows. He is a businessman. In December 2007, he visited the first defendant's factory. He was taken around the place and was shown other items that the defendant had manufactured. He requested the manager to tailor-make the items that he required. To that end, he arranged for the manager to visit his flat and take some measurements.

This was duly done.

The manager left him with catalogues from which he and his wife could select what they thought was suitable. He was given a quotation upon which he successfully negotiated a discount. He was also given a Bank account into which he was to deposit the amount reflected on the quotation. He told the defendants that he was going to dispose of some shares and that this would take some time. The second defendant assured him that this would not pose any problems. As soon as his shares were sold, he deposited the amount reflected on the quotation into the defendant's Bank account. He paid the deposit a week or two after the date appearing on the quotation. When his shares were sold, he told the defendant that he was going to make the transfer and wanted to know whether there had been any changes to the prices. The second defendant assured him that there had been no changes and there would be no problem with his deposit.

Apart from the quotation, nothing else was reduced to writing as between the parties. The witness was shown a copy of the quotation which he identified. Same was adduced into evidence.

The plaintiff proceeded to testify that, after some arguments, the defendant delivered part of the ordered furniture leaving the items in dispute outstanding. He demanded for the delivery of the remaining items, firstly, by word of mouth and then by a letter of demand.

In conclusion, the plaintiff testified that at not time did he discuss the issue of revisiting the pricing of the order as suggested by the defendants. He insisted that, after paying the amount reflected on the quotation, he was entitled to delivery of the outstanding items even if he paid outside the lifetime of the quotation as he had advised the defendants that he needed time to sell his shares.

The witness impressed me as an articulate and confident man. He was very clear as to what the defendants were obliged to do under the contract and was keen to see them held strictly to the written terms of the contract, an attitude that evoked in me memories of passages in the Shakespearian play; Merchant of Venice.

The witness was wordy in his responses to questions put to him under cross-examination and would at all times maintain his stance that he performed his side of the bargain by paying the contract price in full.

In my view, the factual issue that falls for determination in this suit is whether the parties varied the written terms of the quotation to allow the plaintiff to make payment of the quoted price outside the lifetime of the quotation.

On this point, the plaintiff did not testify with his characteristic clarity and confidence. His evidence, as detailed above, was to the effect that that he spoke to the second defendant when his shares had been sold and asked him if there were any changes to the quotation. He was told that there were none.

I did not believe the plaintiff in this regard.

Firstly, I did not believe him when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed.

Secondly, it is highly unlikely that the second defendant, when and if telephoned, would have advised the plaintiff that there were no changes in the price especially in the environment during which the contract was concluded. The defendants testified that their quotations were now valid for 3 days only as prices were constantly changing. It is therefore highly improbable that, after two or three weeks, prices on the quotation had remained static.

After testifying, the plaintiff called one Custon Muchepa (“Custon”). Custon used to work for the defendants and was the first defendant's manager at the time. He is the one who prepared and issued the plaintiff with the quotation. On a date he did not give, the plaintiff telephoned him to advise that he had made payment on the quotation. He then received a call from the workshop requesting him to prepare a bill of materials for work on the plaintiff's order to begin. He confirmed that part of the plaintiff's order was delivered and the balance was promised. The balance of the order was never delivered. Out of frustration and other misunderstandings, he left the first defendant's employment before delivery of the remaining items had been made.

On the material dispute of fact between the parties, Custon Muchepa did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

After the evidence of this witness, the plaintiff closed his case.

The second defendant gave evidence on his own behalf and on behalf of the first defendant. His evidence was as follows;

He is a Director of the first defendant. He recalls that the plaintiff came to the defendant's workshop where he was given a quotation. The quotation was supposed to be valid for three days. The plaintiff was also given the first defendant's account number for the purposes of making payment. Prior to the parties concluding the transaction, the plaintiff informed him that he had funds that were maturing sometime which he would use to fund the contract. He then left his manager to prepare the quotation. After three weeks, he received a report from his manager that the plaintiff had made payment, by direct deposit, into the first defendant's account. He checked the account and confirmed the deposit. He then telephoned the plaintiff and confirmed the deposit. He however advised the plaintiff that the deposit was now insufficient to cover the order. The plaintiff, in turn, advised him that he had no further funds and that the parties should re-negotiate. The first defendant started manufacturing the items of furniture that the parties had agreed were equivalent to the deposit. When the plaintiff was advised of this, he said the parties should discuss the issue further. The defendants delivered the items that were equivalent to the deposit. After delivery, he telephoned the plaintiff for a meeting. The plaintiff insisted that he had paid for the entire order and demanded delivery of the remaining items.

The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross-examination. He impressed me a being honest and truthful.

I particularly believed him when he testified that he only received the report that payment had been made from Custon Muchepa, meaning that he did not speak to the plaintiff before the plaintiff made the deposit. He thus did not agree to extend the validity of the quotation before payment was made. His evidence in this regard gains corroboration from the testimony of Ronald Mpopoma who testified after him.

Ronald Mpopoma's evidence was to the following effect;

He is son to the last witness and works for the first defendant as Clerk. He confirmed that ordinarily, the defendants were giving quotations valid for only three days. He thus expected the plaintiff to make a payment after three days of obtaining the quotation. Instead, he received a report, after three weeks, that the plaintiff had made payment on the quotation. The report was made to him by Custon Muchepa. He then telephoned the plaintiff to come and discuss the issue. At the meeting, the plaintiff was advised that his deposit was insufficient to meet his order. It is at that stage that the parties agreed that the defendants would only manufacture those items that were equivalent to the amount of the deposit. The parties were to further agree on the remaining items. On that understanding, the witness gave the word for work to commence on the plaintiff's order.

Regarding Custon Muchepa, the witness testified that he fired him after he realized that there was an unhealthy relationship between him and the plaintiff and that the two may have diverted the defendants' jobs to the competition.

In my view, the witness gave evidence that was largely common cause save for the information on how Custon Muchepa left employment. Regarding the material issue in dispute, he was clear that the plaintiff was made aware of the insufficiency of his deposit when such was made. In this regard, he corroborates the evidence of the second defendant in a material respect.

After this witness, the defendants closed their case.

In his closing submissions, counsel for the plaintiff correctly submitted, in my view, that the first issue I have to determine is whether or not the parties had a contract, and, if so, what the terms of the contract were.

In answer to the questions posed by the first issue, he submitted that the parties had a verbal contract for the manufacture of the furniture items specified in the quotation and for the price stipulated in the quotation.

I am unable to agree that the parties unconditionally entered into a contract for the manufacture of the furniture items listed in the quotation. In my view, the quotation that was issued to the plaintiff by the defendants was an invitation to treat. It was the offer to do business with the plaintiff. The terms of the offer were endorsed on the face of the quotation.

It may be pertinent, at this stage, to observe that while the defendants testified that at the time they were issuing quotations valid for only three days, in casu, the quotation clearly stated on its face that it would hold for a week. Thus, notwithstanding their policy in this regard, they were bound by the period given on the face of the quotation.

In my view, the plaintiff could have validly made payment within one week of the quotation and such payment would have bound the defendants.

The plaintiff however did not make payment within one week. It is not clear when he made payment. As observed above, he has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

The plaintiff has approached the court ex contractu. He alleges that he had a binding contract with the defendants. He further alleges that while he performed his side of the bargain, the defendants are in breach and should be compelled to perform.

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

In casu, it is common cause that the quotation given to the plaintiff constitutes the offer that was made by the defendants.

It is the settled position in the law of contract that an offer can lapse through the effluxion of time. This means that after the time set in the offer for acceptance has expired, the offer is no longer open to acceptance for the birthing of a valid contract. The point was settled in Laws v Rutherford 1924 AD 261 and has held since. At 262, INNES CJ had this to say:

“Speaking generally, when the acceptance of an offer is conditioned to be made within a time limit or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

In casu, the offer was valid for one week. The one week lapsed before the plaintiff had accepted it. His purported acceptance of the offer, after the one week, was of no force and effect.

Put differently and conversely, acceptance of an offer must always correspond to the offer. If it does not, it constitutes a counter offer and no valid contract is birthed on the original offer.

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found above that I do not believe his testimony in this regard. There was no such variation. His offer of the defendant's offer had to be within a week of the offer. It was not.

Further, he has not sought to argue that the defendants accepted his counter-offer to pay the price at his own time.

In the circumstances, it is my finding that the plaintiff has failed to establish the contract that he seeks to rely on for an order compelling the defendants to deliver the remaining items of furniture. Payment of the price on the quotation made when the offer was no longer open could not bring about an enforceable contract between the parties.

Specific Performance re: Triable Issues

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were;

(a) Whether the plaintiff is owed the outstanding items of furniture; and

(b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

Findings of Fact re: Witness Testimony iro Approach & the Presumption of Clarity of Events Nearer the Date of the Event

The plaintiff impressed me as an articulate and confident man….,.

The second defendant gave evidence on his own behalf and on behalf of the first defendant….,. The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross examination. He impressed me a being honest and truthful.

Findings of Fact re: Witness Testimony iro Candidness with the Court and Deceptive or Misleading Evidence

I did not believe the plaintiff when he testified that he telephoned the second defendant as he alleges.

He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed….,.

The plaintiff has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

Corroborative Evidence re: Approach, Affidavit of Interest, Uncorroborated or Single Witness Evidence & Evidence Aliunde

After testifying, the plaintiff called one Custon Muchepa (“Custon”)…,.

On the material dispute of fact between the parties, Custon Muchepa did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made….,.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

Consensus Ad Idem re: Approach iro Foundation, Sanctity, Privity, Retrospectivity & Judicial Variation of Contracts

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

Founding, Opposing, Supporting, Answering Affidavits re: Approach & Rule that a Case Stands or Falls on Founding Affidavit

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted.

I have found…, that I do not believe his testimony in this regard. There was no such variation.

Variation of Contracts re: Deed of Settlement, Compromise Agreement iro Waiver, the Presumption Against Waiver & Estoppel

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted.

I have found…, that I do not believe his testimony in this regard. There was no such variation.

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MAKARAU JP: On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture.

In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that whilst he had performed his side of the bargain by paying the agreed price, the defendant, in breach of the agreement, had failed to deliver all the items contracted for leaving the items forming the subject matter of this suit outstanding. In particular, the plaintiff averred that in terms of the agreement between the parties, the defendant would manufacture and deliver a 7 piece dinning room suite, a side serve, a 3 piece coffee table set, a 2 piece side board, a 3 piece room divider and a wall mirror. In breach of the agreement, the defendant failed to deliver the side board, the room divider and the wall mirror.

The suit was defended.

In its plea, the first defendant averred that the plaintiff made inquiries about the cost of item he required and was given a quotation which was valid for a limited time. He then made payment on the quotation outside the lifetime of the quotation and without first making reference to the defendant with the result that the amount he paid was only sufficient for the manufacture of the items that were delivered to him.

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were whether the plaintiff is owed the outstanding items of furniture and whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

The matter was thus set down for trial before me.

At the trial, the plaintiff gave evidence. His evidence was as follows. He is a businessman. In December 2007, he visited the first defendant's factory. He was taken around the place and was shown other items that the defendant had manufactured. He requested the manager to tailor make the items that he required. To that end, he arranged for the manager to visit his flat and take some measurements.

This was duly done.

The manager left him with catalogues from which he and his wife could select what they thought was suitable. He was given a quotation upon which he successfully negotiated a discount. He was also given a bank account into which was to deposit the amount reflected on the quotation. He told the defendants that he was going to dispose of some shares and that this would take some time. The second defendant assured him that this would not pose any problems. As soon as his shares were sold, he deposited the amount reflected on the quotation into the defendant's bank account. He paid the deposit a week or two after the date appearing on the quotation. When his shares were sold, he told the defendant that he was going to make the transfer and wanted to know whether there had been any changes to the prices. The second defendant assured him that there had been no changes and there would be no problem with his deposit.

Apart from the quotation, nothing else was reduced to writing as between the parties. The witness was shown a copy of the quotation which he identified. Same was adduced into evidence.

The plaintiff proceeded to testify that after some arguments, the defendant delivered part of the ordered furniture leaving the items in dispute outstanding. He demanded for the delivery of the remaining items firstly by word of mouth and then by a letter of demand.

In conclusion, the plaintiff testified that at not time did he discuss the issue of revisiting the pricing of the order as suggested by the defendants. He insisted that after paying the amount reflected on the quotation, he was entitled to delivery of the outstanding items even if he paid outside the lifetime of the quotation as he had advised the defendants that he needed time to sell his shares.

The witness impressed me as an articulate and confident man. He was very clear as to what the defendants were obliged to do under the contract and was keen to see them held strictly to the written terms of the contract, an attitude that evoked in me memories of passages in the Shakespearian play; Merchant of Venice.

The witness was wordy in his responses to questions put to him under cross-examination and would at all times maintain his stance that he performed his side of the bargain by paying the contract price in full.

In my view, the factual issue that falls for determination in this suit is whether the parties varied the written terms of the quotation to allow the plaintiff to make payment of the quoted price outside the lifetime of the quotation.

On this point, the plaintiff did not testify with his characteristic clarity and confidence. His evidence as detailed above, was to the effect that that he spoke to the second defendant when his shares had been sold and asked him if there were any changes to the quotation. He was told that there were none.

I did not believe the plaintiff in this regard.

Firstly, I did not believe him when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed. Secondly, it is highly unlikely that the second defendant when and if telephoned, would have advised the plaintiff that there were no changes in the price especially in the environment during which the contract was concluded. The defendants testified that their quotations were now valid for 3 days only as prices were constantly changing. It is therefore highly improbable that after two or three weeks, prices on the quotation had remained static.

After testifying, the plaintiff called one Custon Muchepa, (“Custon”). Custon used to work for the defendants and was the first defendant's manager at the time. He is the one who prepared and issued the plaintiff with the quotation. On a date he did not give, the plaintiff telephoned him to advise that he had made payment on the quotation. He then received a call from the workshop requesting him to prepare a bill of materials for work on the plaintiff's order to begin. He confirmed that part of the plaintiff's order was delivered and the balance was promised. The balance of the order was never delivered. Out of frustration and other misunderstandings, he left the first defendant's employment before delivery of the remaining items had been made.

On the material dispute of fact between the parties, Custon did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

After the evidence of this witness, the plaintiff closed his case.

The second defendant gave evidence on his own behalf and on behalf of the first defendant. His evidence was as follows.

He is a director of the first defendant. He recalls that the plaintiff came to the defendant's workshop where he was given a quotation. The quotation was supposed to be valid for three days. The plaintiff was also given the first defendant's account number for the purposes of making payment. Prior to the parties concluding the transaction, the plaintiff informed him that he had funds that were maturing sometime which he would use to fund the contract. He then left his manager to prepare the quotation. After three weeks, he received a report from his manager that the plaintiff had made payment by direct deposit into the first defendant's account. He checked the account and confirmed the deposit. He then telephoned the plaintiff and confirmed the deposit. He however advised the plaintiff that the deposit was now insufficient to cover the order. The plaintiff in turn advised him that he had no further funds and that the parties should renegotiate. The first defendant started manufacturing the items of furniture that the parties had agreed were equivalent to the deposit. When the plaintiff was advised of this, he said the parties should discuss the issue further. The defendants delivered the items that were equivalent to the deposit. After delivery, he telephoned the plaintiff for a meeting. The plaintiff insisted that he had paid for the entire order and demanded delivery of the remaining items.

The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross-examination. He impressed me a being honest and truthful.

I particularly believed him when he testified that he only received the report that payment had been made from Custon, meaning that he did not speak to the plaintiff before the plaintiff made the deposit. He thus did not agree to extend the validity of the quotation before payment was made. His evidence in this regard gains corroboration from the testimony of Ronald Mpopoma who testified after him.

Ronald Mpopoma's evidence was to the following effect.

He is son to the last witness and works for the first defendant as clerk. He confirmed that ordinarily, the defendants were giving quotations valid for only three days. He thus expected the plaintiff to make a payment after three days of obtaining the quotation. Instead, he received a report after three weeks that the plaintiff had made payment on the quotation. The report was made to him by Custom. He then telephoned the plaintiff to come and discuss the issue. At the meeting, the plaintiff was advised that his deposit was insufficient to meet his order. It is at that stage that the parties agreed that the defendants would only manufacture those items that were equivalent to the amount of the deposit. The parties were to further agree on the remaining items. On that understanding, the witness gave the word for work to commence on the plaintiff's order.

Regarding Custon, the witness testified that he fired him after he realized that there was an unhealthy relationship between him and the plaintiff and that the two may have diverted defendants' jobs to the competition.

In my view, the witness gave evidence that was largely common cause save for the information on how Custon left employment. Regarding the material issue in dispute, he was clear that the plaintiff was made aware of the insufficiency of his deposit when such was made. In this regard, he corroborates the evidence of the second defendant in a material respect.

After this witness, the defendants closed their case.

In his closing submissions, Mr Muchandiona for the plaintiff correctly submitted in my view that the first issue I have to determine is whether or not the parties had a contract and if so, what the terms of the contract were. In answer to the questions posed by the first issue, he submitted that the parties had a verbal contract for the manufacture of the furniture items specified in the quotation and for the price stipulated in the quotation.

I am unable to agree that the parties unconditionally entered into a contract for the manufacture of the furniture items listed in the quotation. In my view, the quotation that was issued to the plaintiff by the defendants was an invitation to treat. It was the offer to do business with the plaintiff. The terms of the offer were endorsed on the face of the quotation.

It may be pertinent at this stage to observe that while the defendants testified that at the time they were issuing quotations valid for only three days, in casu, the quotation clearly stated on its face that it would hold for a week. Thus, notwithstanding their policy in this regard, they were bound by the period given on the face of the quotation.

In my view, the plaintiff could have validly made payment within one week of the quotation and such payment would have bound the defendants.

The plaintiff however did not make payment within one week. It is not clear when he made payment. As observed above, he has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

The plaintiff has approached the court ex contractu. He alleges that he had a binding contract with the defendants. He further alleges that while he performed his side of the bargain, the defendants are in breach and should be compelled to perform.

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

In casu, it is common cause that the quotation given to the plaintiff constitutes the offer that was made by the defendants.

It is the settled position in the law of contract that an offer can lapse through the effluxion of time. This means that after the time set in the offer for acceptance has expired, the offer is no longer open to acceptance for the birthing of a valid contract. The point was settled in Laws v Rutherford 1924 AD 261 and has held since. At 262, INNES CJ had this to say:

“Speaking generally, when the acceptance of an offer is conditioned to be made within a time limit or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

In casu, the offer was valid for one week. The one week lapsed before the plaintiff had accepted it. His purported acceptance of the offer after the one week was of no force and effect.

Put differently and conversely, acceptance of an offer must always correspond to the offer. If it does not, it constitutes a counter offer and no valid contract is birthed on the original offer.

The plaintiff has not, like the appellant in Laws v Rutherford pleaded that the defendants waived their rights to insist on payment within the week. He instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found above that I do not believe his testimony in this regard. There was no such variation. His offer of the defendant's offer had to be within a week of the offer. It was not.

Further, he has not sought to argue that the defendants accepted his counter-offer to pay the price at his own time.

In the circumstances, it is my finding that the plaintiff has failed to establish the contract that he seeks to rely on for an order compelling the defendants to deliver the remaining items of furniture. Payment of the price on the quotation made when the offer was no longer open could not bring about an enforceable contract between the parties.

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendants costs.









Danziger &Partners, plaintiff's legal practitioners.

Mtombeni, Mkwesha, Muzawazi & Partners, defendant's legal practitioners.

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