should be had to the Model Law’s international origin, promotion of uniformity, in its
application and observance of good faith, in its interpretation. 197
Chapter III of part I deals with Articles 11 to 15 which are referred to as non-mandatory
provisions.198 These provisions may be varied in line with the principle of party
autonomy in terms of article 4 of the Model Law. The non-mandatory provisions
covered in chapter III of the Model Law relate to formation and validity of electronic
contracts, recognition by parties of data messages, attribution of data messages,
acknowledgement of receipt and time and place of dispatch and receipt of data
messages.199
2.4.3 Common law requirements for electronic contracts
2.4.3.1 The online offer and acceptance
Article 11 provides that in the context of contract formation, unless otherwise agreed
by the parties, an offer and the acceptance of an offer may be expressed by means of
data messages, where a data message is used in the formation of a contract, that
contract shall not be denied validity or enforceability on the sole ground that a data
message was used for that purpose. The different types of e-commerce transactions
include an offer and acceptance, through email communications,200 contracting via the
internet on World Wide,201 EDI transactions,202 click-wrap agreements,203 shrink-Wrap
Agreements.204
The question as to what constitutes a valid electronic contract depends on whether or
not the contents of an electronic communication or website constitute a valid offer
197
Gregory (2003-2004: 275 at 276).
Pistorius (2002: 129 at 135).
199 Gregory (2003-2004: 275 at 281).
200 Jafta v Ezemvelo KZN Wildlife 2008 (10) BBLR 954 where the court held that an offer and acceptance
through email communication constituted a valid contract.
201 Papadopoulos et al (2012: 42) mentions that goods advertised on the website are ordered by filling an
electronic form.
202 Eiselen (1995:1); Snail (2008: 1 at 4); Van der Merwe et al (2008: 142) states that EDI is computer -tocomputer transmission of data in a standardised format.
203 Pistorius (2004: 568 at 569) explai ns that a computer screen on a commercial website displays terms and
conditions accepted by clicking the button; Jason (2004: 65).
204 Pistorius, T. (1999) “The enforceability of shrink-wrap agreements in South Africa 5 SA Merc LJ 1 at 2;
Pistorius (1999: 282 at 291) asserts that a shrink wrap agreement is a standard form printed agreement placed
on top of the package containing computer software which comes into effect upon tearing shrink -wrap plastic
or software installation.
198
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