electronic wills are documents which comply with common law ‘in writing’ requirement,
and can be sanctioned by the use of advanced electronic signature. It is therefore,
recommended that electronic wills should be included under the sphere of application
of the Bill.
4.2.2 Inclusion and amendment of key definitions
It is recommended that an electronic transaction should be defined to also embody a
data component. The terms electronic commerce, electronic agent and an automated
transactions are material, and should be covered under the definitions section of the
Bill. The legislature should expressly state that dispatch and receipt of data messages
is in the conclusion of contract.
4.2.3 Substitution of electronic communication with a data message
It is suggested that the Bill should replace the use of the term an electronic
communication in electronic transactions provisions with a data message for two
grounds. First, the Bill validates a data message, and not an electronic communication,
on that basis, it would be an irregularity to substitute a data message for an electronic
communication. Second, an electronic communication is not a synonym of a data
message, as a result, the two terms may not be used interchangeably.
4.2.4 The ‘in writing’ requirement under mandatory provisions
It is further suggested that the common law ‘in writing’ requirement which the Bill
places under default provisions should be moved to obligatory provisions for the
purposes of filling the legal lacunae of the statutory ‘in writing’ formality. Section 8(2)
on the writing provision should be struck out for ambiguity. Section 8(1) should be
deleted for lack of clarity in so far as it relates to the law attaching consequences where
information is not in writing.
4.2.5 Incorporation by reference provision
The legislature may consider setting out a criteria for a valid incorporation in order to
ensure compliance with the best international standards for electronic contracts.
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