action which invokes the employment of common law theories which are shown to
impose difficulties in electronic contracting because they do not distinguish whether
parties are inter praesentes or inter absentes.227
Article 15 (1) provides that unless otherwise agreed between the originator and the
address, the dispatch of a data message occurs when it enters an information system
outside the control of the originator, or of the person who sent the data message on
behalf of the originator.228 A data message should not be considered to be dispatched
if it merely reached the information system of the address but failed to enter it,
according to Model Law’s notion of entry.229 Receipt of a data message is at the time
when it enters a designated information system of the addressee, or at the time when
the message is retrieved in the case of undesignated information system. 230 The
Model Law regards a place of dispatch as the originator’s place of business. 231
2.5 CONCLUSION
It was observed that the substantive common law requirements for a legally
enforceable paper-based contract find application in electronic contracts through the
Model Law.
There are generally no formalities required for the conclusion of a valid
contract, subject to some agreements mandated by statutory provisions to be reduced
into writing in order to be valid. The Model Law’s key provisions on writing and
signature set out a criteria on how these provisions can be functionally equivalent, and
be legally recognised like paper-based contracts. Nonetheless, the Model Law offers
no provision for the time of the conclusion of the contract, and leaves it open to
legislators to decide on the appropriate theory of time of contract conclusion, based
on the peculiar circumstance of each jurisdiction.
The following chapter will entail an in-depth analysis of the Lesotho Electronic
Transactions and Electronic Commerce Bill 2013, in comparison with Electronic
Communications and Transactions Act 25 of 2002 as aforementioned, in order to
investigate how common law requirements for formation of contracts are applied,
227
Pistorius (2006: 178 at 196).
Pistorius (2002: 129 at 147).
229 Pistorius (2002: 129 at 147).
230 Pistorius (2002: 129 at 147).
231 Pistorius (2002: 129 at 148).
228
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