Abstract

One of the topics in contractual relationships that has generated discussion is contractual certainty. Some have questioned whether it should be a stand-alone criterion or if it should be included in the list of requirements for a legally binding contract. According to one argument, consensus should incorporate certainty because the two concepts are comparable. The argument for certainty as a stand-alone need, however, is more persuasive since it goes beyond the bounds of agreement. The parties to the agreement must be aware of every obligation that the agreement aims to establish. Clarity is therefore a necessary condition for a contract to be enforceable. An agreement between the contracting parties to negotiate the terms of the contract is called a pacta de contrahendo, also referred to as a contract to contract. Pacta de contrahendo can have two forms: an option and a right of preemption. Despite their similarities, the two kinds differ in how they are operated. With an option, the parties have already agreed upon the parameters of the main contract; in contrast, with a pre-emptive contract, the grantor grants the other party the prerogative to finish the main contract first, should the parties want to move forward with it. There is however, also a misunderstanding as to the certainty and enforcement of pacta de contrahendo. In light of the above, this paper seeks to analyse the case of Vodacom (Pty) Ltd v Makate and Another (Case no 401/2022) [2024] ZASCA 14 (06 FEBRUARY 2024.

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