The emergence of new technology has had an enormous impact on many aspects of business and as such traditional methods of communication have been replaced with more efficient electronic means.
Can you enter into an agreement electronically?
It is now possible to enter into various types of agreements electronically; for example, by way of email and or even instant messaging applications, such as WhatsApp. However, there are certain agreements that may not be entered into electronically such as agreements in relation to the sale of immovable property, wills and bills of exchange.
How does this affect any agreement entered electronically?
It stands to reason that if an agreement can be entered into electronically then an agreement and the terms thereof may also be varied and or cancelled by way of data messages.
Ordinarily any cancellation or variation of an agreement can only be done if the agreement is reduced to writing and signed by both contracting parties, however our courts are now of the opinion that the abovementioned requirements can be met by way of email (the requirement to reduce the agreement into writing) and by way of using the typewritten names of the parties at the foot of their emails as a means of identification, as well as, signature thereof.
The emergence of new technology has many positive as well as negative effects and it is therefore very important that individuals utilising these modern methods of communication and business practices are aware of the possible repercussions thereof.
It is advisable to take care in all electronic communications, especially when negotiating any matter in relation to business dealings via the many methods of electronic communications such as emails and instant messaging platforms.
In terms of any business dealings it is very important to ensure that you make your intentions clear, avoid sentences that could be ambiguous and if it is not your intention to enter into any agreement, it is important to say so. To ensure that you are not unwittingly entering into an agreement when conducting negotiations via email, the drafter should draw reference to the disclaimer contained within his/her email and in this way ensures that the recipient’s attention is drawn thereto.
Can your email disclaimer get you out of an unintended contract?
Any information that is transferred, sent or received by electronic means in South Africa is governed by the Electronic Communications and Transactions Act “ECTA.”
The basic principle in terms of the Act is that email disclaimers have legal force and effect. However, due to their overuse and use in inappropriate circumstances, the use thereof has since become questionable.
For an email disclaimer to be enforceable, they should only be utilised when the occasion warrants and they should not be automatically attached to every single email that gets sent out regardless of the content. Disclaimers should be drafted carefully and should only address the risks that are applicable to the matter
It is of great importance that businesses review their information communication and technology policy on a regular basis and ensure that same contains, amongst other things, an email usage policy. This in turn ensures that employees are aware of the content contained therein and provides an opportunity for employees to fullyunderstand the meaning and correct usage of email disclaimers.
It is advisable that all businesses have a qualified legal practitioner assist in drafting their disclaimers as well as the necessary information communication and technology policy to ensure compliance with the law.
Please address all enquiries to the National Office.