requirements in sections 8 and 9 respectively, may be varied by agreement between
the parties.
3.3.11 Default and mandatory contracting provisions in the RSA ECT Act
Section 21 reads that Part II of the ECT Act pertaining to default provisions will only
apply if parties have not reached an agreement on the issues provided therein. 327 The
ECT Act’s default provisions relevant in electronic contracts are on formation and
validity of agreements,328 time and place of dispatch and receipt of communication.329
The mandatory provisions are contained in part I of the ECT Act, and relate to the legal
recognition
of
data
messages,330
writing,331
signature,332
and
automated
transactions.333
The Model Law stipulates that mandatory requirements, of which ‘in writing’ and
signature requirements fall, should not be subject to parties’ variation. The ‘in writing’
and signature requirements also appear under obligatory requirements under the ECT
Act. Coetzee remarks that the requirement of writing has always been the main
stumbling block in legalising electronic contracts because it can function as a statutory
formality requirement for the creation of a valid contract, such as to prove the existence
of the contract.334
The ‘in writing’ requirement is a statutory formality in some
contracts, not subject to parties’ variation, such as those under Credit Agreements
Act.335
Should the parties enter a credit agreement contract, the ‘in writing’
requirement is inescapable, that means such an agreement should be in the form of a
data message available for subsequent reference, such as an e-mail, in order to fulfil
the ‘in writing’ statutory formality.336
It would be anomalous for the Bill to categorise the ‘in writing’ requirement under nonmandatory provisions because it would mean that the statutory ‘in writing’ formality
327
S21 ECT Act.
S22 id.
329 S23 id.
330 S11 ECT Act.
331 S12 id.
332 S13 id.
333 S20 ECT id.
334 Coetzee (2004: 501 at 511).
335 Credit Agreements Act 75 of 1980.
336 Rens (2002: 22 at 24).
328
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