2.4.3.5 The pillars of the Model Law: Figure 1.
Signature
requirement
Functional
equivalence
principle
Writing
requirement
2.4.3.6 Time and place of dispatch and receipt of data messages
The default rules apply in the absence of an agreement between the parties stating
the time and place of the dispatch and receipt of data messages.223 Article 15 which
stipulates the time and place of dispatch and receipt of data messages is important for
determining the moment when a contract is concluded, and for such purposes as
proper jurisdiction and applicable legal system.224 Coetzee explains that the answer
to the question as to where and when a contract comes into effect depends on the
theory of contract formation which is applicable to the particular transaction.225 As
stated above, the information and expedition theories are displaced by technological
advancements. Jason is of the view that expedition theory finds proper application in
electronic contracts as it accommodates both instantaneous and non-instantaneous
means of communication.226 Notable is the legal lacunae that the Model Law has no
provision as to the exact time of formation of an online contract. Many jurisdictions
followed suit and have no provision for the exact time of contract formation, the in-
223
Fitzgerald et al (2007: 520).
Standard Bank of South Africa Ltd v Efroiken and Newman 1924 AD 171; Improvair (Cape) (Pty) Ltd v
Establishments Newman 1983 (2) SA 138.
225 Coetzee, J. (2004) “The Electronic Communications and Transactions Act 25 of 2002: facilitating electronic
commerce” 3 Stell LR 501 at 513.
226 Jason (2004: 48).
224
25