users of computer-based information.50 The Model Law’s pivotal provision is article 5
on functional equivalence which stipulates that information shall not be denied legal
effect, validity or enforceability solely on the ground that it is in the form of a data
message, and a data message is defined in article 2(a) as information generated, sent,
received or stored by electronic, optical or similar means including, but not limited to,
electronic data interchange, electronic mail, telegram, telex or telecopy.51 It is clear
from article 5 that the Model Law applies to data messages.
The functional equivalence principle determines how the purpose and functions of
traditional paper-based requirements, such as ‘in writing’ and signature requirements
can be met to satisfy similar needs in e-commerce.52 The functional equivalence rule
is achieved by establishing the essential purpose of paper-based communications and
its use to determine the criteria that electronic communications should meet if they
were to enjoy the same legal recognition as the corresponding paper-based
communications.53 This means that functional equivalence rule is not just there for the
taking. The mere fact that communication is electronic is not the only pre-requisite for
its legal recognition, it should first pass the common law requirements test set for
traditional paper-based contracts.54 The overriding requirement is that information
must be in the form of a data message.
It is trite that the Model Law does not find direct application in any legal system,
however, it merely provides a legal framework on which national legislatures can base
their electronic commerce legislation to facilitate greater international harmonisation. 55
It seeks to address the legal lacunae that developed as a result of technological
innovations.56
The Model Law has been adapted in economic powerhouses like
United States, Canada, Australia and European Union,57 and other countries
50
Kariyawasam et al (2009: 157 at 161).
Fitzgerald et al (2007: 507); The UNCITRAL Guide to Enactment available at
www.uncitral.org/pdf/english/texts/electcom/05-89450_Ebook.pdf (accessed 27 March 2015).
52 Papadopoulos et al (2012: 42).
53 Pistorius (2002: 129 at 134).
54 Papadopoulos et al (2012: 44).
55 Van der Merwe et al (2008: 145); Davidson (2009: 26).
56 Pistorius (2002: 131).
57 Pistorius, T. (2004) “Click-wrap and web-wrap agreements,” 16 SA Merc LJ 568; Pistorius, T. (2006) “From
snail mail to e-mail: South African perspective on web of conflicting rules on the time of e-contracting rules” 39
CILSA 178 at 190-198.
51
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