The big question for all business owners is about the signing of contracts online and if they are legal in South Africa?
Of course having your clients sign contracts and terms and conditions online would really be the new age way of doing things. No paper, no admin and no stress. Your clients would be able to easily access the contract you sent them, accept and voila.
The main question is then whether it is legally enforceable. Ultimately the point of having a contract in the first place is to have something legally AND binding. So, is the signing of contracts online then legally enforceable?
I am going to go all lawyer-y on you, just bear with me…. But the Electronic Communications and Transactions Act, 2002 says that a signature is “data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature”.
The watered down version of this section actually just means that your consumer can sign electronically but:
1. must have the intention of signing; and
2. incorporate a digital mark or change to the document.
Good examples of electronic signatures include:
- your typed name at the end of your e-mail,
- a scanned image of your handwritten signature embedded into a Word document and
- a so-called digital signature.
So what about a tick in tick box?
Well, the Act refers to these type of contracts as “Click wrap” contracts which is basically a contract that is part of the website and requires a user to just click “yes or I agree” to accept the “terms and conditions” of the transaction.
If you look at the definition of signature: the consumer had to have the intention of signing and then digitally make a mark or change it and then a ticked box definitely looks like a signature!
To summarize – yes your clients can sign all of the contracts sold on this website electronically and it would be enforceable. An electronic signature would include typing of an email, handwritten signature, digital signature or a tick box accepting your terms.
(Remember some contracts are excluded by this Act, but nothing on this website)