South African law of contract : consensus in the context of the Electronic Communications and Transactions Act 25 of 2002

Abstract

This research project encompasses several essential objectives. It offers a holistic exploration of online contracts, providing a comprehensive definition and categorization of the types of online agreements. Concurrently, it delves into the legislation that governs these digital agreements, and which provides for its validity and enforceability. In parallel, this study assesses paper-based contracts, unveiling their fundamental nature and core principles. It identifies the prerequisites for a contract to be considered valid and binding under common law, whilst considering the critical elements of consensus, offer, and acceptance. These established principles are then examined within the context of online contracts to assess their relevance and applicability. Further consideration is given to online contracts as a subset of contracts of adhesion, a detailed analysis of their unique characteristics and inherent complexities is conducted to assess their propensity to inform the extent of perfect consensus. This investigation extends to the caveat subscriptor rule and its exceptions, exploring their implications in both the South African legal landscape and the broader international arena. Another integral facet of this study involves an exploration of judicial perspectives and the South African Courts’ approach to the interpretation of paper-based and online contracts. A comparative analysis is undertaken to highlight the contrasting features between traditional paper-based contracts and their digital counterparts, format, structure, content, and methods of expressing agreement. Finally, the research underscores and champions the transformative impact of plain language in contracts. It highlights how the use of clear, unambiguous language could enhance the reader’s comprehension of contract terms and increase the achievement of perfect consensus.