Page 737 - Week 02 - Thursday, 23 February 2012
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Instead, it clarifies that whether or not a signature in an electronic communication is reliable should be decided in light of all the circumstances, including any relevant agreement, to prevent a party to a transaction from repudiating its signature in bad faith.
Minor amendments have been made to time of dispatch provisions to reflect a greater knowledge of the internet and the use of electronic communications since the act was first legislated. New section 13 provides that the time of dispatch of the electronic communication is the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator. If the electronic communication has not left an information system under the control of the originator, the time of dispatch is generally the time when the electronic communication is received by the addressee.
New section 13A provides the default rules for determining time of receipt, which mirror the rules provided in section 13. New section 13B provides rules regarding the place of dispatch and the place of receipt. The section provides that, unless otherwise agreed between the originator and the addressee of an electronic communication, the electronic communication is taken to have been dispatched at the place where the originator has its place of business. The electronic communication is taken to have been received at the place where the addressee has its place of business.
Section 13B also provides that a party’s place of business is presumed to be the location indicated by that party, unless another party demonstrates that the party making the indication does not have a place of business at that location.
New part 2A preserves the principle that contracting parties should be free to agree on matters affecting the formation and performance of a contract between them. New section 14B intends to transpose the common law notion of an invitation to treat into an electronic environment. The section provides that a proposal to form a contract made through an electronic communication, not addressed to a specific party and generally accessible to parties making use of information systems, is to be considered as an invitation to make offers. This is unless there is a clear indication that the intention of the party making the proposal is to be bound in case of acceptance.
The act has been amended to recognise the use of automated message systems as part of present-day business practices and to ensure the validity of these transactions. It provides that a contract formed by the intention of an automated message system and an individual, or by the interaction of automated message systems, is not invalid merely because automated message systems were used.
This definition confirms that the absence of human intervention does not prevent a contract from being formed. Automated message systems used for the purposes of contract formation will not deprive the contract of legal effectiveness, validity or enforceability. If an individual makes an input error with the automated message system of another party and they are not provided an opportunity to correct the error, section 14D provides individuals with a right to withdraw part of an electronic transaction.
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