NESTOROS v INNSCOR AFRICA LTD 2007 (2) ZLR 267 (H)

Flynote

c Contract — validity — offer — need for offer to be certain and definite — uncertainty as to what was promised or when it was to be fulfilled — no binding agreement

Headnote

The plaintiff, a director of a company, sought an allocation of shares similar to what other directors, who had been in the company much longer, had received. The deputy chairman of the defendant company explained that the plaintiff's allocation was lower because of his shorter time in office but promised to "sort out" the plaintiff's shareholding.

Held, that what distinguishes a true offer from any other proposal or statement is the express or implied intention to be bound by the offeree's acceptance. It is fundamental to the nature of any offer that it should be certain and definite in terms. It must be firm, that is, made with the intention that when accepted it will bind the offeror. An offer to enter into a binding contract must be distinguished from preliminary discussions, invitations to treat, offers to negotiate, statements of intention and mere puff. The terms of a contractually binding offer must be firm, certain and definite. Vagueness or uncertainty in the terms of an offer is fatal to the existence of the supposed contract. In casu, the purported offer was not couched in certain and definite terms sufficient to constitute an offer for the purposes of a binding contract. It was uncertain as to when the promise would be fulfilled and as to what was actually promised. The deputy chairman's promise thus did not constitute a binding agreement giving rise to any clear contractual undertaking by the defendant.