n Comparative and International Law Journal of Southern Africa - From snail mail to e-mail - a South African perspective on the web of conflicting rules on the time of e-contracting

Volume 39, Issue 2
  • ISSN : 0010-4051



Most countries that adopted e-commerce laws maintained the status quo on the time of e-contracting and this issue has remained unsettled. The difficulty courts face in applying common-law principles to determine the time of electronic contracting is discussed. The common-law rules devised for determining the time paper-based contracts are formed cannot be applied to determine the time of electronic contract formation with ease. It is submitted that the categorisation of forms of communication as either 'instantaneousness' or 'non-instantaneousness' to determine the time of electronic contract formation is outdated. The use of these obsolete methods to determine the moment a contract becomes effective defeats the whole purpose of e-commerce legislation: to create rules for e-contracting that are both functionally equivalent and media neutral in their operation. It is submitted that a new, uniform solution, which is neutral to the mode of communication, should be adopted. In South Africa the ECT Act adopted the reception theory for electronic contract formation. The ECT Act's provision on the time of e-contract formation is not flawless but it is submitted that it was a brave step in the right direction.

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