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Reproduced with permission of 6 Vindobona Journal of International Commercial Law & Arbitration (2002) 305-318.

E-Commerce and the CISG: Formation, Formalities and Validity

Sieg Eiselen [a1]

  1. Introduction
  2. Formation of Contract
  3. Part Autonomy, Interchange Agreements and Standard Terms
  4. Conclusion
    Select Bibliography on E-Commerce and the CISG

1. INTRODUCTION

In the twenty odd years since text of the United Nations Convention on Contracts for the International Sale of Goods, Vienna 1980 ('CISG') was agreed to, the face of business communications has changed radically by the introduction of newer technologies and applications such as fax, electronic data interchange ('EDI') and the Internet. It is clear from the wording of, amongst other provisions, Art. 13 CISG that these applications were not available at the time of drafting as it only refers to telegram and telex.

One of the fears in respect of the CISG was that as a statutory piece of legislation it would lead to a stagnation of the law and that it would be difficult to change the convention if necessary. The challenges posed by these new communications methods in international commercial relations therefore offer an excellent opportunity to establish whether or not these fears were well founded.

Since the adoption of the CISG in 1980 UNCITRAL, besides other similar projects, has produced two Model Laws dealing directly with electronic commerce, namely the UNCITRAL Model Electronic Commerce Law of 1996 (Model Law 1996) and the UNCITRAL Model Electronic Signature Law of 2001 (Model Law 2001). The stated object of the Model Law 1996 is the following:[1]

'The Model Law, adopted in 1996, is intended to facilitate the use of modern [page 305] means of communications and storage of information, such as electronic data interchange (EDI), electronic mail and telecopy, with or without the use of such support as the Internet. It is based on the establishment of a functional equivalent for paper-based concepts such as "writing", "signature" and "original." By providing standards by which the legal value of electronic messages can be assessed, the Model Law should play a significant role in enhancing the use of paperless communication.'

These model laws are not directly applicable or conventions to be adhered to but simply serve as legislative examples or templates for use by national legislators on which to model their legislation. They have been used by a number of countries, for instance India, Singapore, the Philippines and South Africa.

The article will analyse the contract formation issues covered by the CISG in the context of the use of these newer technologies and applications and the two Model Laws to establish whether any specific problems arise that need to be addressed by parties who use these applications in international trade. The following issues will receive attention:

(a) the requirements stipulated for communications to be valid and effective;
(b) compliance with formalities such as writing and signature; and
(c) party autonomy: the ability to contractually deal with the above issues.

2. FORMATION OF CONTRACT

2.1 Validity of e-communications

Normally EDI is fairly narrowly defined as 'the electronic interchange of machine processable structured data, which has been formatted according to agreed standards and which can be transmitted directly between different computer systems with the aid of telecommunication interfaces.'[2] Electronic commerce on the other hand is a wider all inclusive term which may be used to describe EDI, internet communications, e-mail and [page 306] even fax. For the purpose of this article the term 'electronic commerce' is used in this wide sense. Where reference is made to electronic commerce, unless a specific application is mentioned, it will also include EDI, e-mail, fax and telex, but exclude telephonic communications.

The validity of electronic communications is determined by the Model Law 1996 in Arts. 5 and 11 as follows:

'Article 5. Legal recognition of data messages

Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message.[3] ... ]

Article 11. Formation and validity of contracts

(1) In the context of contract formation, unless otherwise agreed by the parties, an offer and the acceptance of an offer may be expressed by means of data messages. Where a data message is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that a data message was used for that purpose.'

The point of departure in the Model Law is therefore that unless there are other legislative stumbling blocks, all electronic communications will be accorded their normal legal consequences dependent on the intention of the party making that communication. Therefore, if an offer is made with the necessary contractual intent, the offeree can rely on that offer even though it may only be in electronic form.

A second principle embodied in the Model Law 1996 is the principle of functional equivalence: the law has been formed and developed from the point of view of paper-based applications. In order to afford electronic communications the same legal effect and protection as paper based communications, solutions that are functionally equivalent to paper need to be found without trying to imitate paper. This is of relevance especially in respect of formalities and more specifically signature.

The time and place of electronic communications are determined by Art. 15 of the Model Law 1996, In terms of this Article an electronic message is, unless otherwise [page 307] agreed to by the parties, deemed to be:

2.2 Pre-contractual communications

Article 24 CISG which deals with the pre-contractual situation reads as follows:

'For the purposes of this Part [II] of the Convention, an offer, declaration of acceptance or any other indication of intention "reaches" the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence.'

From this formulation it is clear that the Convention does not directly make provision for electronic communications and it will depend on the rules of interpretation whether this gap can be filled. Where there is a gap in the Convention, it must be decided whether the situation falls inside the expected field covered by the Convention, in which case there is a gap which must be filled through interpretational methods, or if it falls outside that field in which case there is no gap.[4] In such a case the situation is resolved by reference to the applicable legal system (private international law rules). In the case of a gap, Art. 7 provides guidelines for the interpretation of the Convention.

It is clear that in the case of electronic communications there is only reference to telex and none of the other forms of communication with the result that the existence of a gap [page 308] can be assumed. The content matter not dealt with clearly falls within the scope of the Convention because it deals with other forms of communication and there is no indication that the Convention intended to exclude any specific kind of communication - on the contrary, it seems to aim at being all inclusive. This assumption is further bolstered by the fact that the methods of communication under discussion were largely non-existent at the time of the acceptance of the Convention.

The principle underlying Art. 24 and aiding its interpretation is the principle that any communications must either be received by the recipient personally (in the case of direct forms of communication) or must be effectively placed at its disposal at a place where it usually receives such communications or where it should expect to find communications in the normal course of business. Therefore a message sent to the e-mail address, the fax number, the web address or the VANS address supplied by the recipient should meet the requirements for validity posed by the CISG. The deeming provisions of Art. 15 of the Model Law 1996 also confirm this approach. The message is deemed sent at the time that it leaves the information system of the sender and is deemed received at the time that it enters into the information system of the recipient. Once it enters into that system the message is at the disposal of the recipient and therefore received. This approach offers legal certainty to parties as the time and place of dispatch and receipt can be objectively determined and accordingly also the legal consequences of such messages.

2.3 Time and place of formation

The question as to when communications will become valid and binding in the case of parties who are not in touch directly, has been solved in a number of different ways. Each of these approaches in essence determines which of the parties carries the risk of a communication being lost, destroyed or damaged in the transition process. Unless determined by agreement between the parties themselves there are three main theories which may be applied, being:

(a) the information theory which determines that a communication only becomes effective once the recipient takes notice of the content of the communication. This theory is usually applied to direct forms of communication, such as telephone, and may often also be the default position in cases of uncertainty.

(b) the reception theory which determines that a communication only becomes effective once the recipient has actually physically received the communication or it has at least been made available to it, even though it has not yet taken notice of [page 309] the content. In terms of this so-called 'Zugangstheorie', the deciding moment is dependent upon the communication being available to the recipient in the sense that it has been placed at its disposal in a place in which it would expect to receive communications in the normal course of business and in a manner which is comprehensible to it. It is usually used in regard to indirect forms of communication such as telegram and telex and has its origin in civil law systems.

(c) the postal or dispatch theory in terms of which the communication is effective once it has been posted or sent by the sender. This is usually applied to cases of indirect communications and has its origins in the Common Law where it was introduced to handle the issue of revocability of offers.

When dealing with communications in electronic trade, a strong case can be made out for the use of one of the variants of the reception theory rather than the information or dispatch theory, in the absence of any provision by the parties. In respect of EDI or internet transactions for instance, it is quite easy to determine when a party had access to a message, or when it had received it. On the other hand it may be very difficult to determine when it actually became informed of the existence or content of the message in a subjective sense. Very often an electronic order will automatically be acknowledged by the supplier's system and executed by its plant or shipping department without any person with executive powers actually taking notice of the communication. In these circumstances it is unrealistic to apply the information theory. This theory also provides opportunities for the recipient to play ducks and drakes with its trading partner by manipulating the time of taking subjective notice of an acceptance. Lastly it encumbers the sender with an almost impossible burden of proof.

In most circumstances it is fairer to both parties to apply an objective test, namely the reception theory rather than the subjective information theory when dealing with indirect forms of communication. Whether Internet, EDI, fax, telex or e-mail, it is fairly easy to determine objectively when a party actually received a message or had access to it. The choice between strict reception, where actual reception is required, and the 'Zugangstheorie', which only requires access, will vary from situation to situation. As a general rule it may be argued that the 'Zugangstheorie' is probably the fairer solution for most situations if it is made subject to the condition that the message must be readable or processable by the recipient. It has the advantage of being objective and it provides the least opportunity for either party to unfairly manipulate the time of the dispatch or reception of the message.

Article 15 CISG stipulates that an offer becomes effective when it reaches the offeree. [page 310] This clearly is an application of the 'Zugangstheorie.' Although this is an initiating communication, the use of the 'Zugangstheorie' is acceptable because the risk that the offeree does not take notice of the offer cannot in most cases not be used to the detriment of the offeree. Failure to respond will not lead to a binding contract even if the offer requires such a response. Article 18(1) clearly states that failure to respond does not amount to an acceptance. The only situation where the 'Zugangstheorie' may be detrimental to the offeree is where it is the holder of a right of first refusal and the offer is made effectively without it coming to its notice. The time limit set for acceptance or rejection may then prescribe without the offeree ever being aware of the right to exercise its right of first refusal.

The Model Law 1996 consciously avoided providing a solution to this problem. In para. 78 of its Guide to Enactment this decision is justified as follows:

'As to the time and place of formation of contracts in cases where an offer or the acceptance of an offer is expressed by means of a data message, no specific rule has been included in the Model Law in order not to interfere with national law applicable to contract formation. It was felt that such a provision might exceed the aim of the Model Law, which should be limited to providing that electronic communications would achieve the same degree of legal certainty as paper-based communications. The combination of existing rules on the formation of contracts with the provisions contained in article 15 is designed to dispel uncertainty as to the time and place of formation of contracts in cases where the offer or the acceptance are exchanged electronically.'

When dealing with electronic trade, the principle in Art. 24 of the CISG means that the electronic message must have been delivered either to the recipient's electronic mailbox when a store and forward system is used, or to its computer system itself. Whether somebody has read it or not is irrelevant, it must simply be available in a readable or processable form. Likewise, in the case of e-mail the message must have been properly delivered to the recipient's e-mail address. Where a fax is sent the 'Zugangstheorie' requires that the recipient's fax machine must have received the fax properly, whether it has been printed out or not. It is submitted that the 'Zugangstheorie' provides a fair solution to the distribution of risk in the case of electronic communications.

In terms of Art. 15 of the Model Law 1996 the result would be the same as proposed in the previous paragraph, namely that the electronic communication will be effective once it has entered into the information system of the recipient, that is once it is accessible to [page 311] the recipient. The time and place of formation will still depend on the provisions of the applicable legal system however.

2.4 Formalities

Where contracts are concerned, there are usually three different types of formalities that may be required namely writing, signature and some kind of third party authentication or involvement such as notarial execution. In the context of international sales contracts for movables only the first two requirements are relevant.[5] These formalities are required for five purposes, namely legal certainty (provided by writing) on the one hand and identification, attribution, assent and authentication (provided by signature) on the other hand and may be required either by statute or by the parties themselves. Many written contracts contain a standard clause which states that no amendments to the contract will be valid or binding unless reduced to writing and signed by both parties, which makes the use of those formalities mandatory.

The point of departure of the CISG in regard to formalities is that no formalities are required. International sales contracts can therefore be concluded in any manner seen fit by the parties, including any of the newer communications applications mentioned above. However, where parties are using other forms of communication, they must be wary of their own standard terms which often contain clauses subjecting them to these formalities. In these cases it must either be agreed between the parties that electronic communications will be regarded as writing and that the alternative prescribed authentication procedures will be recognized as 'signatures.' This can easily be done in the standard contracts or in the interchange agreement [6] between the parties.

The position of formalities in the CISG has however been complicated by the exception included in Art. 12 which reads as follows:

'Any provision of Article 11, Article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or [page 312] any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under Article 96 of this Convention. The parties may not derogate from or vary the effect of this article.'

This effectively means that certain countries may still require writing as a formality, but not signature.

2.5 Writing

Writing has traditionally been associated with paper-based applications where words are typed or printed on paper or similar media. Whether the words created on a computer screen will be viewed as writing is still not settled in some legal systems, but there seems to be a consensus amongst writers on this topic that presentations of words on a computer should constitute writing.

The problem with cyber-writing however is that unlike writing on permanent media like paper, what is transfixed on the floppy, CD Rom, hard disk or other storage medium does not constitute writing without being processed. Furthermore, due to the transient nature of cyber-writing, it has lost much of its original evidential value in that it is not fixed and objective proof, unless it is coupled with other safeguards ensuring that the original text remains unchanged. Even though that is the case, I believe that cyber-writing does constitute writing in law and ought to be accepted as such.

In terms of Art. 13 CISG telegrams and telexes are included under the term 'writing.' In both of these forms of communications one deals with applications where the recipient receives a print-out of the message. It is therefore available in a physical format and not purely electronic format. As electronic communications such as Internet messages, e-mail and EDI were unknown at the time, it must be established whether they can be included in the expanded definition of Art. 13. It is submitted that Art. 13 contains a gap, i.e. fails to address a situation which is clearly covered by the Convention, and that gap-filling interpretation is necessary in this case. When interpreting this article, the principle of freedom of formalities and freedom of contract suggests that an inclusive interpretation is in order. This means that article must be read to include all electronic forms of communication as well. Thus a fax, an e-mail or an EDI message should be regarded as writing where writing is required. [page 313]

Writing is specifically dealt with in the Model Law 1996 as follows:

'Article 6. Writing

(1) Where the law requires information to be in writing, that requirement is met by a data message if the information contained therein is accessible so as to be usable for subsequent reference.

(2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being in writing'

This article makes it clear that where any electronic communication meets the minimum requirements stipulated, i.e. if the information is accessible and capable of being retrieved and used subsequently, it will be treated as having been made in writing for the purposes of the Model Law. Almost all electronic messages will therefore be deemed to meet the requirement of writing in terms of this article.

2.6 Signature

Identification, assent, attribution and authentication by signature presents a bigger problem in electronic trade. In most jurisdictions where specific legislation enabling electronic commerce has not been passed, it would seem that the requirement of signature is only met if a physical signature is affixed to a paper document. So-called electronic signatures do not suffice unless specific provision for electronic authentication has been made. The fact that there are applications available today which make electronic signatures more secure for purposes of authentication than hand-written signatures have not yet found favour with most legislators where formalities are concerned. The CISG does not require signature in any case and no country is entitled to make an exception as Arts. 12 and 96 only apply to the formality of writing.

Therefore the requirement of an electronic signature will only be relevant where the parties themselves have stipulated the mandatory authentication by signature. As this requirement often appears in standard terms and conditions it may prove problematic in such circumstances.

The Model Law 1996 makes provisions for the recognition and use of electronic signatures in Art. 7: [page 314]

'(1) Where the law requires a signature of a person, that requirement is met in relation to a data message if:
(a) a method is used to identify that person and to indicate that person's approval of the information contained in the data message; and
(b) that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement.

(2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the absence of a signature.'

The provisions of the Model Law 1996 soon proved inadequate to deal with all the issues raised by electronic signatures. UNCITRAL therefore developed a specific model law for aimed at dealing with these issues, namely the Model Law 2001. There are also various other models or attempts to deal with electronic signatures such as the European Union Parliament's Directive on a Community Framework for Electronic Signatures (1999/93/EC) and the provisions contained in various pieces of legislation such as the Irish Electronic Commerce Act 2000, s. 13. For the purpose of this paper reference will only be made to the Model Law 2001 as the principles embodied therein are the same as in the Model Law 1996.

'Article 2. Definitions

For the purposes of this Law:

(a) "Electronic signature" means data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory's approval of the information contained in the data message;

Article 3. Equal treatment of signature technologies

Nothing in this Law, except article 5, shall be applied so as to exclude, restrict [page 315] or deprive of legal effect any method of creating an electronic signature that satisfies the requirements referred to in article 6, paragraph 1, or otherwise meets the requirements of applicable law.

Article 6. Compliance with a requirement for a signature

1. Where the law requires a signature of a person, that requirement is met in relation to a data message if an electronic signature is used that is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement.

2. Paragraph 1 applies whether the requirement referred to therein is in the form of an obligation or whether the law simply provides consequences for the absence of a signature.

3. An electronic signature is considered to be reliable for the purpose of satisfying the requirement referred to in paragraph 1 if:

(a) the signature creation data are, within the context in which they are used, linked to the signatory and to no other person;
(b) the signature creation data were, at the time of signing, under the control of the signatory and of no other person;
(c) any alteration to the electronic signature, made after the time of signing, is detectable; and
(d) where a purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.'

Article 2. Model Law 2001 deals specifically with the issues of identification, attribution and assent. It aims at creating a functional equivalent for a signature without trying to mimic the physical attributes of a paper-based signature. The reliability and recognition of signatures are dealt with in Art. 6. Model Law 2001. The Article is widely formulated without making reference to specific types of technologies, protocols or techniques. Although it creates legal uncertainty by using requirements such as 'as reliable as was [page 316] appropriate' it is open to legislators or parties specifically to stipulate the required type of electronic signature that will be acceptable. This can be done on an ad hoc basis in respect of specific agreements or acts which can then be amended from time to time as technology advances. The advantage of this formulation is that it is technologically neutral and that it could embrace any kind of authentication such as digital certificates and biometrics as electronic signatures.

3. PARTY AUTONOMY, INTERCHANGE AGREEMENTS AND STANDARD TERMS

It has become customary for Internet traders to use standard terms and conditions of agreement for their Internet transactions. These terms and conditions are usually incorporated by reference either by referring to them on the website or by so-called click-wrap in terms of which the assent of a client is effected by clicking on a button referring to the standard terms and conditions. It is therefore open to the parties to agree on issues such as writing, proof and signature, except where there are mandatory statutory provisions that apply.

In terms of the CISG the parties are entitled to establish the trade relationship in whatever manner they deem fit and the only parts of the Convention that may not be changed by the parties are those articles in regard to formalities where they are mandatory. The CISG therefore maintains a policy of freedom of contract where any agreement between the parties themselves will take precedence. The only other limitation on this freedom of the parties is the issue of legality, which will be determined by the applicable legal system. Although some terms in an interchange agreement may fall foul of legislation on standard terms, the likelihood of this happening is small. The standard interchange agreements in use around the world today are usually based on standard contracts which are nationally or internationally accepted and recommended.

Furthermore the use of the interchange agreement may also be seen as a usage or practice which has been established between the parties and which is binding upon them in terms of Art. 9 CISG, which provides:

'(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.'

There is therefore nothing in the CISG that opposes the use of interchange agreements; on the contrary, it seems that such an agreement or practice is supported by the provisions and principles of the CISG. Interchange agreements can therefore be used to seamlessly fit in with the CISG or to replace the provisions of the Convention where [page 317] they are inappropriate.

4. CONCLUSION

The fear that the CISG would become an unchanging and static monument of legal unification that would be unable to deal with changing circumstances in a fast changing world, has as yet not been realised. The electronic revolution that has taken place in the last part of the twentieth century, the new forms of communication brought with it and new ways of doing business as a result of it, provide an excellent field to test the hardiness and flexibility of the CISG. This paper clearly shows that the Convention and its underlying principles are sufficiently robust and flexible to deal with these changes and the challenges posed by these new forms of communication and that virtually no changes need to be made to the Convention. The areas where the approach or solution followed in the CISG has been shown to be problematic, stem not from the use of more modern forms of communication, but rather are structural or conceptual deficiencies that existed from the outset and are applicable to all forms of communication. The analysis clearly shows that the CISG is a coherent and logical body of law able to survive and grow in the modern world. The adoption of the Model Laws or similar laws by national legislatures to deal with electronic commerce will further advance the provisions of the CISG without making any amendments to the CISG necessary. [page 318]


The following is a select bibliography relating to e-commerce and the CISG provided by the author:

Bassenge et al (eds) Palandt Bürgerliches Gesetzbuch 57 edn. (1998 München);

Bernstein. H & Lookofsky. J., Understanding the CISG in Europe (1997 The Hague);

Bianca, C.M. & Bonell, M.J. Commentary on the International Sales Law - The 1980 Vienna Sales Convention (1987 Milan);

Burghard 'Das Wirksamwerden empfangsbedürftiger Willenserklärungen im Zeitalter moderner Telekommunikation', 1995 AcP 74;

Calamari, J.M. & Perillo, J.M., The Law of Contracts, 3rd edn. (1987 St Paul); [page 318]

Christie, R.H., The Law of Contract in South Africa, 3rd edn. (1996 Durban);

Clarkson, C.M.V. & Hill, J., Joffey on Conflict of Laws (1997 London);

Clifford, R.D., Computer and Cyber Law: Cases and Materials (Carolina Academic Press 1999);

Collins, L., Dicey & Morris on the Conflict of Laws Vol 2, 12th edn. (1993 London);

Eiselen, S., 'Electronic Commerce and the UN Convention on Contracts for the International Sale of Goods (CISG) 1980' 1999 EDI Law Review 21;

Eiselen, S., 'Elektroniese Dataverwisseling (EDV) en die Bewysreg' 1992 Tydskrif vir Hedendaagse Romeins-Hollandse Reg, 204;

Eiselen, S., 'The Electronic Data Interchange Agreement' 1995 SA Merc LJ 1-1;

Enderlein, F., Maskow, D. & Strohbach, Internationales Kaufrecht (1991 Berlin);

Franken, H., Kaspersen, H.W.K. & Wild, A.H., de Recht en computer, 3rd edn. (1996 Deventer);

Fritzemeyer, W. & Heun, S.E., 'Rechtsfragen des EDI', 1992 CR 129;

Harter, G., 'EDI - Begin einer neue Aera für Geschäftsbeziehungen', 1991 CR 430;

Heinrich, G., 'UNCITRAL und EDI Einheitsrecht', 1994 CR 118;

Honnold, J.O., Uniform Law for the International Sales under the 1980 United Nations Convention 2nd ed (1991 Deventer);

John, 'Grundsätzliches zum Wirksamwerden empfangsbedürftiger Willenserkläxungen', 1984 AcP 385;

Kegel, G., Internationales Privatrecht, 7th edn. (1995 München);

Lord, R.A., Williston A Treatise on the Law of Contracts Vol 2, 4th edn. (1991 Rochester); [page 319]

Ludwig, K.S., Der Vertragschluss nach UN-Kaufrecht im Spannungsverhältnis von Common Law und Civil Law (1994 Franfurt);

Magnus, U., 'Wiener UN-Kaufrecht (CISG)' in Honsell, H., (ed) Von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einfürungsgesetz und Nebengesetze 13th edn. (1994 Berlin);

Murray, J., 'An essay on the formation of contracts and related matters under the United Nations Convention on Contracts for the International Sale of Goods', 1988 J of L & Comm 11;

North, P.M. & Fawcett, J.J., Cheshire & North Private International Law, 12th edn. (1991 London);

Perillo, J.M. (ed) Corbin on Contracts Volume I, Rev edn., (1993 St Paul);

Reed, C. & Angel, J., Computer Law, 4th edn. (2000 London);

Schlechtriem, P., (ed) Commentary on the UN Convention on the International Sale of Goods, 2nd edn. (1998 Oxford);

Stern, E., Erklärungen in UNCITRAL-Kaufrecht (1990 Vienna);

Takach, G.S., Computer Law (Toronto 1998);

Tapper, C., Computer Law, 4th edn. (New York 1989);

Van Der Merwe, D.P., Computers and the law, 2nd edn. (Cape Town 2000);

Van der Merwe, S., (ed) Contract - General Principles (1993 Cape Town);

Wolf, M., (ed) Soergel Kommentar zum BGB Band I, 12th edn. (1987 Stuttgart);

Wright, B., The Law of Electronic Commerce (Looseleaf Updated July 1996 Boston). [page 320]


FOOTNOTES

a1. Professor, University of South Africa, Pretoria.

1. As found on the UNCITRAL website at: <http://www.uncitral.org/english/texts/electcom/ecommerceindex.htm>.

2. Eiselen, S 'Elektroniese Dataverwisseling (EDV) en die Bewysreg', 1992 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 204, at p. 208; Van Esch & Prins 2; Wright, B., The Law of Electronic Commerce (Looseleaf Updated July 1996 Boston) 1.1.4; Burghard 'Das Wirksamwerden empfangsbedürftiger Willenserklärungen im Zeitalter moderner Telekommunikation' 1995 AcP 74, at p. 76, fn 18.

3. Data message is defined as follows in the Model Law 1996 Art. 1:

"'data message" means information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.'

4. Article 7 of the CISG. See also Staudinger/Magnus Art. 7 Rn 9, at p. 38.; v Caemmerer, Schlechtriem, Herber Art. 7 Rn 8-9. 27-42; Schlechtriem P (ed) Commentary on the UN Convention on the International Sale of Goods 2nd edn. (1998 Oxford), at pp.60-68.

5. To the best of the author's knowledge, notarial execution or some like authentication is not required by any legal system in regard to the sales contract itself. It is however possible that such formalities may be proscribed for the transfer of certain goods or rights. International transactions tend to be more informal although the parties themselves may often prescribe formalities. See Collins L Dicey & Morris on the Conflict of Laws Vol 2 12th ed (1993 London), at p. 1255; Wright Electronic Commerce, please see fn 3, 16.1.

6. Please see below at Section 3 'Party Authonomy, Interchange Agreements and Standard Terms, at p. 314.


Pace Law School Institute of International Commercial Law - Last updated August 15, 2006
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