In Cooper v Clark (2015/31475) [2016] ZAGPJHC 79, the High Court dealt with the enforceability of an offer to purchase that had purportedly been accepted by the seller, but which had been amended at the same time.

Cooper submitted a written offer to purchase a certain property for the sum of R 6,300,000. The offer stipulated that a building inspector was to inspect the property within 14 days of acceptance and the resulting defects checklist would form part of the agreement.

Clark purported to accept the written offer by signing the document in question. However, she simultaneously made certain amendments thereto. She deleted a portion of the offer and added text to the effect that the requirements in relation to the inspection of the property did not constitute a suspensive condition.

After the purchaser, Cooper, had paid a deposit, she received a copy of the signed and amended written offer. She informed the seller, Clark, that she rejected the amendments and demanded the return of the deposit.

The High Court held that the seller’s amendments to the offer materially altered the intended contractual terms. Such amendments amounted to a counter-offer. These were not accepted by the purchaser, meaning that no binding contract came into existence.

The seller was ordered to return the purchaser’s deposit and to pay the latter’s legal costs.