Dwaling weens foutiewe kommunikasie by die elektroniese kontrakteringsproses

Abstract

In the modern era of international trade most agreements are concluded by way of electronic means. This form of trade is better known as e–trading. This method of negotiating and concluding contracts are popular and the way of the future. With the use of electronic means faulty communications can occur and create legal uncertainty. Faulty communications can be a hindrance to international trade and legal certainty in this area is needed. This study focuses on the legal position where a faulty electronic communication arises at the conclusion of an international contract. These faulty communications can cause a mistake/error between the contracting parties and can exclude the consent between the parties. If the consent between the parties is absent it can have an affect on the validity of the contract. The South African legal position of mistake/error due to faulty electronic communications at the conclusion of a contract is analysed and compared to other international instruments. These international instruments include the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), the 2004 UNIDROIT Principles of International Commercial Contracts and the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts. These international instruments were specifically created for international trade and can be used to regulate the legal position of contracting parties. Based on the above comparison the South African legal position is evaluated and some improvements are recommended.