court in an electronic contract case is similarly to ascertain the intention of the parties to the contract.100 A contract is formed when the parties who have the requisite intention and comply with the requirements of law agree to enter into a legal relationship with a serious intention that a lawful obligation should be established, without which a contract cannot be formed.101 It means an agreement arising from true or mutual assent which is intended to be legally enforceable.102 It is also defined as an agreement entered into by two or more persons with the intention of creating a legal obligation to bind the contracting parties,103 a set of promises for the breach for which the law gives remedy. 104 In the case of Wilken v Kohler,105 the court held that a contract is an agreement which is legally enforceable. 2.3.2 Common law requirements for a legally enforceable contract Agreement is the basis of contract, and there must, at least, be two persons to a contract, only the parties who are privy to a contract are bound by it. 106 An agreement constitutes a contract when it complies with the legal requirements for a valid contract which are consensus or agreement, contractual capacity, lawfulness or juridical enforceability, possibility of performance or formalities.107 Van der Merwe108 and Papadopoulos109 similarly outline consensus, contractual capacity, lawfulness, physical possibility or formalities, if any, for conclusion of a valid contract. It is stated that if any electronic communication between two or more parties can be interpreted as having complied with the formal constitutive requirements of a contract, as stated above, it could be inferred that a valid contract has been concluded, and if 100 Seddon et al (2001: 137). Kerr (2002: 41); Gibson (1999: 9). 102 Christie, HR: (2001: 2); Papadopoulos et al (2012: 43). 103 Hutchison, D. et al. (2009) “The law of contract in South Africa” 6; Baumer, D. (2002) “Cyber Law and ECommerce” 23. 104 Morino (1994: 340). 105 Wilken v Kohler 1913 AD 135 at 140. 106 Sharrock (2011: 3). 107 Fouché, MA. (2007) “Legal principles of contract and commercial law,” 6 th ed, 37. 108 Van Der Merwe (2003:8). 109 Snail, S. (2008) “Electronic contracts in South Africa: a comparative analysis” 2 JILT 5. 101 12