1.3.1 Cyber contracts trend
The advent of technologies which brought about e-commerce caused writers such as
Singleton to sternly caution those who contract over the internet to consider the legal
aspects and issues precipitated by an online environment.32 Singh noted that although
the
technological
inventions,
discoveries
and
innovations
are
undoubtedly
advantageous in, inter alia, widening scientific horizons, they also equally pose new
challenges for the legal world, in particular, they prove the inadequacy of law while
dealing with the information technology itself, and changes brought about by the
information technology in an online environment business.33
Therefore, albeit the
subject of e-commerce being one of the modern topical subjects of legal research, its
nuances are far from being understood, thus there remains a lot of legal and policy
problems connected with e-commerce that suffice a devoted research on this field.34
1.3.1.1 Legal regulation of cyber contracts
The rapid growth of electronic transacting raised new issues such as performance and
formation of commercial contracts which necessitated legal regulation. 35 Thus, much
effort has been expended worldwide on clarifying the principles governing the
formation and validity of electronic contracts, also referred to as cyber contracts, with
the emphasis on functional equivalence principle to the effect that online contracts
should be afforded the same legal treatment as paper-based contracts.36
An electronic contract is a contract that is formed in the cyberspace.
37
An electronic
contract is typically entered into through the medium of the internet, either by using of
the various constructs of the World Wide Web such as click wrap contracting, through
EDI agreements,38 by the exchange of emails stating offer and acceptance of the term
and conditions of a particular transaction,39 or by Short Messages Service (SMS).40
32
Singleton, S. (2001) “Electronic commerce: a practical guide to the law” 52.
Singh (2001: 3).
34 Snijders et al (2003: 1).
35 Fitzgerald et al (2007: 22).
36 Fitzgerald et al (2007: 486).
37 Morino (1994: 34).
38 Eiselen, S. (1995) “The Electronic Data Interchange.” 7 SA Merc LJ 1 ; Van der Merwe (2008: 160).
39 Ahmad (2009: 226).
40 Manamela, ME. (2011) ‘To meet is to part’: resignation by SMS constitute notice in writing as required by
basic conditions of Employment Act: Mafika v SA Broadcasting Corporation Ltd. 23 SA Merc LJ 521 at 522.
33
4