Abstract:
Lötz and Du Plessis sum up the problem at hand most succinctly in their stating that “the relevant
question is whether electronic contracts of sale can fulfil the general, legal requirements for the
conclusion of a valid contract, and also where and when such contracts are (deemed to be) concluded”.2
In light of this statement, consider the following schematic representation of all the parties and their
relationships, as typically occurring during the electronic contracting process: This statement succinctly sums up a single aspect of this problem, the so-called “contracting phase”.
Following the traditional thought pattern, all aspects leading up to the point of conclusion need to be
assessed and critically discussed as a failing or miscommunication in any one of the traditional
requirements for the conclusion of a valid contract may later in the contractual relationship affect consensus and thus conclusion. This second phase “remedies and liability” refers to the situation where
consensus is defective for one or other reason stemming from a failure in the internet/network services
offered by the Internet Service Provider. A practical example of this may be:
A and D have concluded pre-contractual negotiations and stand on the brink of consensus. A has signed
the agreement and has forwarded same to D by means of e-mail. As far as A is concerned, the contract is
concluded and he/she makes arrangements to fulfil of his/her obligations. D does not receive the signed
agreement from A due to a failure on the part of his/her Internet Service Provider (C) – the server
crashed and as a result he/she has no knowledge of A’s acceptance. D therefore concludes a contract with
a third party for the same goods that form the subject of the contract with A and performs in terms of
same. In these circumstances A has suffered economic loss due to his/her preparation to perform
alternatively, full performance in terms of a contract he/she believed to be concluded. It goes without
saying that neither A nor D are responsible for the loss A has suffered. The obvious question is then who
is responsible for A’s loss? This work aims to assess firstly, the nature and the scope of possible remedies available to A to redress
his/her loss, and secondly, the extent to which the Internet Service Provider can be held responsible for
the failure of the communication medium. These issues will be discussed against the backdrop of the
general principles of the law of contract and their application to this new and integral component in
economic transactions.
