For an agreement to come into effect, consensus must be reached in respect of all the material terms.
If one party offers and the other accepts, but at the time of signing the latter makes alterations to the contract, can it be said that the first signatory accepted the changes to the contract, or does that person have to acknowledge the changes after they have been made?
This issue was addressed in the recent judgment of Cooper v Clark, where the Court referred to two previous Supreme Court of Appeal judgments. The one concluded that conditional acceptance of an offer does not constitute a contract, but rather a counter offer, and would only become a binding contract on acceptance of the alterations. The other emphasised that where such change amounts to a material alteration of the contractual terms, it constitutes a counter offer and that until accepted, is unenforceable.
Therefore, any material alteration made by one party after the other has signed the agreement, must be accepted by the latter to be enforceable.
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