means used independently to initiate an action or respond to data message or
performances in whole or in part, in an automated transaction.315
The Lesotho Bill validates an automated transaction in section 16. The reference to
an automated transaction in section 16 warrants the insertion of the definition for the
term under the definitions section for the legal certainty on the Bill’s meaning of an
automated transaction. The definition of an automated transaction and electronic
agent appearing in the ECT Act both share the common elements of an automated
message system definition appearing in the Bill, namely, the use of a computer system
to initiate an action without human intervention.
The Bill has no definition for an
electronic agent. It was earlier indicated that the definitions of an addressee, originator
or intermediary also apply where another party uses an electronic agent,316 it would
be absurd that the definition of an electronic agent should be found missing under the
circumstances.
3.2.10 Default and mandatory contracting provisions in the Lesotho Bill
The use of data messages in concluding a contract is at the parties discretion and not
mandatory,317 and it is in line with the party autonomy principle as contained in the
Model Law allowing parties to decide on electronic contract formalities. 318 Section 11
of the Bill provides that part III of the Bill shall apply unless parties have agreed
otherwise.319 These default provisions are on the formation and validity of contracts, 320
time of dispatch of electronic communication,321 time of receipt of electronic
communication,322 place of dispatch and receipt of electronic communications,323
time of contract conclusion,324 automated transactions,325 and input errors.326 It is
observed in section 6 that the Bill stipulates that, the ‘in writing’ and signature
315
S1 id.
Glatt (1998: 34).
317 S21 ECT Act.
318 Papadopoulos et al (2012: 47).
319 S11 of the Bill.
320 S10 id.
321 S12 id.
322 S13 id.
323 S14 id.
324 S15 id.
325 S16 id.
326 S17 id.
316
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