n Lesotho Law Journal - The use of electronic agents in trade and commerce : a critique of the approach under the ETEC Bill 2013




The Parliament of Lesotho is currently working on a Bill intended to regulate electronic commerce, namely the Lesotho Electronic Transactions and Electronic Commerce Bill 2013 (the ETEC). In section 16(1), the Bill provides for the validity and enforceability of automated transactions. Automated transactions are agreements concluded through the use of computer software, known in law as "automated message systems", or "electronic agents", on one or both sides of the contract. In section 18 (1) (c) the Bill further provides that an automated communication, i.e., a message sent by an electronic agent is attributed to the person who programmed it or for whose cause it was programmed to function automatically. This rule of attribution is known as the "mere tool theory", properly so because it regards electronic agents not as "agents" but as tools of communication no different from a telephone or a fax machine. This work criticizes that approach, and further undertakes a comparative research of the legislative framework for electronic agents in the Republic of South Africa and the United States of America to show how other jurisdictions have covered the use of electronic agents in commerce. Finally, this work recommends that before passing the ETEC into law, the legislator should consider permitting the use of the law of agency to instances involving electronic agents.


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