This Article is submitted by –
Sachin Kumar Tiwari, first year student of Dharmashastra National Law University, Jabalpur
Since the invention of the internet by Tim Berners-Lee[i] and more specifically of the World Wide Web (WWW), many changes have emerged and among them is a contract. With this, the time has replaced money. Everything has become quick and competition become tough due to exposure provided by the internet.
A contract is also affected by it as new contracts in this ‘e-world’ become quick with the help of tale-communications. It is to be noted that many mistakes can be avoided by interacting face to face than to conclude the contract at a distance through the other medium.[ii] One-click all it needs and the contract literally can be completed at a jiff. Needless to say, this ‘e-world’ has helped in the growth of e-commerce which in return has supported the growth of the economy of any country. This is the reason why almost every country started working for developing effective principles for governing the contracts by this method.
New principles should be formed so that they can deal with matters such as the formation of contracts, modifications to contracts, jurisdiction, and validity of an online contract. These are challenges to conventional contract law and are issues in the online contract. Formation of superhighway of Information and Communication Technology by mankind has provided lose ground for the ‘e-age information society’ wherein conventional principles need to be discussed again.[iii] India has also started working in this area very quickly because of a forecasted compound annual growth rate of 26.5 percent to 2021.[iv] The conveniences of making the online contract, rapidly advancing economy, and raising living standards of Indians are some of the factors that are responsible for the sudden increase in the annual growth of e-commerce in India.[v] Therefore it is concluded that Indians are involving in an online contract many times in a day.[vi]
The nature of the formation of the contract has undergone a drastic transformation in an online business environment. There was a dominant economic philosophy in the 19th century named laissez-faire which stated that state should not meddle into the affairs of consumers and business and that the individuals should be left to their destiny. However, its effects can also be seen by the two assumptions that were made regarding the contract. Parties were allowed to enter into the contract and to choose the terms of a contract freely. Thus, it was found that the validity of contracts depends on two foundations: (1) Freedom of contract (2) Equality of Bargaining Power.[vii] However, in online contract parties are free to choose the contract and terms but they do not have bargaining power as such a contract used to get complete by the parties situated at a distance.[viii]
World change and with every change brings opportunities, options, problems, and solutions. It is not always possible that the change, that is coming, would make any swinging effect in the development of this complex world. When this change comes in the field of law, it comes with the scope of great deliberation and contemplation so that it would not lead any lacunas which would encumber the progress of this field. One of the sections of this field that contract is ushering new challenges. The contract has always been supportive of making many things easier. But with the emergence of the internet, consumerism, and globalization, the law of contracts is facing new challenges because of e-contracts. Although many countries have given due recognition to e-contract, there still need great work in these field as there are many loopholes which should be filled. Developed countries such as the USA and Russia have understood its relevancy and provided its due recognition.
The term Electronic Contract
The enforceable set of terms and services that are negotiated and concluded through electronic means can be concluded as an electronic contract.[ix] However, there is no specific definition that can specifically deal with an electronic contract.[x] An electronic contract is very much similar to the conventional method of contracting. The purchaser has already made terms and conditions of the contract which the prospective consumer has to follow. The consumer, in this, invariably has options of negotiating the terms and conditions and the prices of the contract. However, it is to understand that nothing is simple as it might seem as it leads to various challenges.
Thus, it can be said from the above discussion that contracts that are happening with the help of electronic communication are electronic contracts. Electronic communications, further, divided into five ways of communication; Chat, EDI (Electronic Data Exchange), Email, Web-board, and Web-based.[xi]
Process of formation of online contract[xii]
As we have discussed earlier that a contract in the e-world is very much similar to the traditional contract that is formed in the real world. In traditional contract law is said to be concluded if there is a valid offer, acceptance, consideration, and intention to create legal relation. These same requirements are also meant to fulfill for concluding the online contract. The path of formation of an online contract can be understood through following ways.
- Firstly, the consumer would gather information about the market place which consumers generally do before actually going to the market place. The important point is that, here, no legal consequence would follow as this would not be termed as ‘invitation to treat’.[xiii]
- Secondly, the consumer would go through the market place from which he gathered the information for the desired goods and services. Here, it would be termed as an ‘invitation to treat’ and legal consequences would follow. However, a declaration of will can be revoked at any time.
- Thirdly, the consumer would choose any goods displayed on the screen in this way accepting the offer. The contract is said to be completed if the consumer manifests his consent to the exact offer. However, the demand for a discount by the consumer would be called as a counteroffer.
- Fourthly, it is the last stage of contract formation where both the party is bind to follow the obligations of the online contract. The receipt received by the buyer is last document.
Classifications of online contract
The online contract can be further divided into the following ways.
Online contract through The Web Wrap Agreements or Click wrap agreement
Unlike other genres of online contract, The Web Wrap Agreements or Click wrap agreement do provide the consumer with a choice to enter into a contract. Consumers are free to adhere to the terms and conditions of the contract. This is possible because it is based on the response of the consumer as they have to click ‘I Agree’ or ‘Accept’ icon and just in case if the consumer is not willing to enter into any contract they can simply click the icon ‘I Disagree’.[xiv] Once the consumer has manifested assent then the consumer would become accountable for the consequences that will flow after assenting the click and the consequences would be put up in the notice itself.[xv]
It is pertinent to discuss that no major change has formed in the principles of pre-existing contract formation and interpretation.[xvi] Therefore for enforcing the Click-Wrap license, it must meet the certain criteria of a unilateral form of contract.
The case of Hotmail Corporation vs. Van $ Money Pie Inc.[xvii] is important when it comes to understanding the judicial interpretation of the click-rap agreement. This case was the first one that upheld the validity of the Click- Wrap agreements. This case has ensured that the terms and conditions of such a contract could be enforceable.
In this case, Hotmail has alleged that customers are violating the terms of the agreement that they have entered into while opening the e-mail account by altering messages and e-mails. It is alleged that they have falsified in such a way that it looks like originated from Hotmail. The court upheld the validity by stating that they are bound to the terms and services of the agreements.
Another important case that dealt with such a format of the contract is LAN Systems, Inc. vs. Net scout Service Legal Corporation.[xviii] In this case, a company named i. LAN a network monitoring provider to customers who have purchased software from Netscout. Netscout has alleged that i. LAN has breached the Click-Wrap licensee as it wanted to rent the software to customers but they agreed to resell Netscout’s software to customers. The court upheld the validity of the agreement by stating that i.LAN has consented to the terms and therefore is bound by it.
It is concluded from the above-mentioned cases that courts are ready to consider such agreement if the party has consented to the terms by clicking the icons ‘Agree’ or ‘I Accept’ and those terms are reasonably available to a party to read or understand.[xix]
Uniform Computer Information Transactions Act (UCITA) has validated the Click-Wrap agreement which can be understood by going through Section 209[xx] and 112[xxi]. The UNCITRAL Model Law on Electronic Commerce (1996) through Section 11 also gives validity to such agreements by giving the recognition of offer and acceptance by data messages.[xxii]
Online contract through Shrink-wrap agreement
The way from customized software packages and agreements to a mass-market mode of software delivery got possible because of the Shrink-wrap agreement.[xxiii] This shifted movement helped the industries financially, therefore, became the cardinal feature of modern-day software transactions.
It is a single piece of paper attached with a box wrapped with transparent plastic cover along with, Warranties, License, Fees and payments, and Limitations of liability. Generally, it would find inside the box along with the software and the owner’s manuals. It would be concluded that consumers have agreed to terms and conditions of the agreement if they have used or if they have opened the box or after reading the agreement, they have not returned the product within a specified time.[xxiv]
The validity of the Shrink-wrap agreement is in doubt because free-bargaining is not possible in such a contract which is slightly possible in Click– Wrap agreement.[xxv] Mixed reactions have found by the courts while discussing the enforceability of such a contract.
There is a catena of cases that have discussed by the courts all over the world, among them; the recent case is ProCD Inc. vs. Zeidenberg.[xxvi] Uniform Civil Code has validated such agreement and this case is important to discuss as it applied UCC to analyze the Shrink- Wrap agreement.
In this case, Zeidenberg purchased a copy computer database that has telephone directories. A license agreement was put up within the box which is prohibiting the use of it for commercial purposes. However, ProCD Inc. alleged that consumer has made available this software in its internet site for free. The court held that the consumer has breached the terms and conditions of the shrink-wrap license agreement even after knowing such terms. The court gave a different opinion than Step-Saver Data Systems v. Wyse Technology[xxvii]and found Section 2-207 inapplicable validated the license due to the sections 2-204[xxviii] and 2-606[xxix] of the Uniform Commercial Code.
Thus, it is clear from the above-mentioned case that the court itself is not in a position to come into conclusion.
Online contract through E-mail
This form of online contract is generally everywhere on the internet. This mode of contracts is using by the corporate immensely due to the easy availability it provides. However, it is not as easy as it seems, it has technical difficulties which need the attention of legal fraternity in this area.
The offeror needs to have an email account and by using it, he/she types the content of the offer specifically along with the address of the offeree to whom the mail is to be sent. Then after clicking the icon ‘Send’ the mail is transmitted electronically. Then, the sent email would reach in the provided e-mail address of the recipient and this would enable the sender to read the content of the mail. In this way, the contract is deemed to be concluded.
Although the basic structure of email communication is very much resembled like older methods of communication such as the post yet they both distinguished from each other.[xxx] It is because the contract formed through e-mail communication is not uninterrupted whole and the Electronic-communication is generally instantaneous (it is not true in all cases because there is a possibility for the email messages to be lost) but this is not a case with postal communications.[xxxi]
The messages are said to be sent when it sent into transmission in a system that is beyond the control of the sender. For receptor, the messages are received when it enters into the designated system of the receiver. If no designation is provided then the messages are received when it enters into the system of the receiver. If the email messages are sent just in case of mailboxes other than the specified mailboxes then the messages are deemed to be received when it is collected by the receiver.[xxxii]
It is settled through Article 15(4) of UNCITRAL Model Law[xxxiii] that the usual place of residence or business should be considered for the place of dispatch or receipt for both receiver and sender.
Online contract through websites (World Wide Web)
The contract formed through websites is different to compare it with email communication as it is not interrupted by the individual’s path therefore no intermediary is involved in the process. Since this the web-communications applications are instantaneous in nature, therefore, would attract receipt rule.
There are generally two ways by which such types of contracts can be formed. Among the two ways, one is straightforward while the second case is a little bit complex in comparison to the first one.[xxxiv] In the first scenario, the consumer goes onto the retailer website to purchase products such as music videos or software in return for payment. In this way, the websites work in a predetermined manner like a ‘digital vending machine’.[xxxv] This case is pretty much similar to the instantaneous form of contract as a contract used to happen directly without any kind of involvement of an intermediary.
In the second case, the website does not function in a predetermined manner like the first case where the process of formation of contracts gets complete immediately as consumers avail the service directly, such as downloading the songs software in return for payment. In this case, consumer needs to fill up the forms or to enter into different tabs to complete the proceedings or to enter into the further process.
Such types of websites contracting can be seen in an online sale of books or air tickets where consumers initially fill the form asking the details of name, address, mode of payment, and timing of delivery and finally to fill the details of payment. Therefore it is evident that the contract is not forming directly.[xxxvi] The Singaporean case is the description of such mode of transaction in websites contracting.[xxxvii]
Legal enforceability of the online contracts
Many international organizations United Nations Commissions on International Trade Law (UNCITRAL) and Convention on Contracts for the International Sale of Goods (CISG)[xxxviii] have validated such a contract where CISG through Article 13[xxxix], J.S. Mill argued that this article deals with such type of contract, which redefined the definition of writing and extended to include telegram and telex and UNCITRAL Model Law on Electronic Commerce through article 7[xl] of model law which is intended to better conform an arbitration agreement with international contract practices modernize and its Section 2 resemble like Article 13 of CISG as it also extended to validate the agreements which are in writing and signed by the parties by an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement.
The UNCITRAl Model Law on Electronic Commerce has also taken steps to ensure enforceability of electronic signature so that parties can sign the contracts without any hustle. Further Article 7 of UNCITRAL also validates the legality of electronic signature.
The UCITA (Uniform Computer Information Act) is also one such legislation which validated the online contract. Originally, it was formed to analyze assent in shrink-wrap agreement. UCITA section 203 validate online contract as it allows the legitimacy of the contract in any way that includes essential of conventional form or by the conduct of parties.
India has also worked in these areas which can be seen by the formation of the Information Technology Act, 2000. The basis of the formation of the IT Act, 2000 was UNCITRAL’s model law as it has framed the section after thoroughly visiting the model law. Section 10(A)[xli] of IT act validate the electronic contract which states that contracts cannot be deemed unenforceable solely on the ground of using an electronic form. Section 10(A) was adopted after the amendment in the IT act in 2008 to cater to the growing need to validate the commercial agreement reached through electronic forms. Chapter IV of Information Technology Act, 2000 that has Sections 11 12 and 13 that deals with Acknowledgement, Attribution, and Dispatch of electronic data.[xlii]
It is to be noted that many ground other than the electronic form can be used as an excuse because the essential requirement for validation of online contract is to be fulfilled all the under the Indian Contract Act, 1872.[xliii]
Legislature landscape in India
In India, no specific principles dealing with online contracts are available. However, India indirectly deals with an online contract using the reference of traditional contract law that is base on common law.[xliv] Already noted, international organizations other countries have validated online contracts. U.S. courts have given its authentication to shrink-wrap agreement but the agreement should not be contrary to the essentials of contract law,[xlv] that means, in India, it should follow section 10 of the Indian Contract Act, 1872.[xlvi] Similarly, it has also validated the legitimacy of clickwrap agreement affirming that consumers are bound to follow the consequences after manifesting the consent.[xlvii]
The free consent and freedom of bargaining power are the quintessential features of a traditional contract.[xlviii] However, it is evident that online contracts do not function like this. Online contracts are usually ‘take it or leave it’ transactions. Thus, these contracts give no room for parties to manifest their assent and to negotiate the terms and services freely.
It is to be noted that courts avoid giving a review on the transactions having equal bargaining power. Therefore, the affected party shall prove that the other party used the situation.[xlix]
The Indian parliament has tried to develop an effective mechanism to tackle the issues of online contracts and formed the Information Technology Act, 2000.[l] This act is based on UNCITRAL’s model law on Electronic Commerce, 1996. It provides alternatives to the traditional formation of contract law and collection of information as it provides validity to online contracts because of the recognition it provides to transactions concluded due to electronic data exchange.[li]
The provisions of IT act, 2000, particularly Section 10-A, deals with an online contract.[lii] The provisions say that the contract is binding in nature and parties are bound to follow the obligations even if the means of communication is in electronic form. This provision states that communication, offer, acceptance, or revocation can be concluded through electronic means and such a contract would be enforceable in a court of law.[liii] This section is the alternative of Section 3 of the Indian Contract Act, 1872 which states that the intending parties’ act or omission for the communication, revocation, and acceptance can be made.[liv]
The various amendments has made in various statutes such as the Indian Evidence Act, 1872, Indian Penal Code, 1860, 1891, the Reserve Bank of India Act, 1934 and the Banker’s Books Evidence Act 1891 to make them compliant with the online contract by the IT act, 2000.
Section 13 of the IT act,2000[lv] when read along with Section 4 of the Indian Contract Act, 1872,[lvi] some principles seem to form regarding the Time and place of dispatch and receipt of electronic record which clarifies some issues. It is to be noted that Section 4 the Indian Contract Act, 1872, do not talk about the instantaneous form of communication but applies to non-instantaneous communication like Email due to distinction made by the Supreme Court between the ‘postal rule’ and ‘instantaneous rule’ in Bhagwandas Goverdhandas Kedia vs M/S. Girdharilal Parshottamdas.[lvii] Therefore it was formed that a contract is formed when acceptance is obtained by the received.
The confusion that was created out of the decision made in PR Transport Agency vs. Union of India[lviii] has effectively eradicated by the Section 13 (3) of the IT act, 2000[lix] which talks about the place of receipt. Thus, it concluded that no matter where the designated source of acceptor and receiptor is placed, the place of business of addressee is deemed to be the place of receipt.
Section 12 the IT act, 2000 deals with the acceptance of the proposals and underlines the provisions of the valid acceptance. Section 12(1) says that if no particular form for acknowledgment of receipt has been provided by the originator then the addressee can send the receipt either through any communication or any act that can satisfy the originator that electronic message is received. Otherwise, it would be concluded that electronic messages have been never sent by the originator.[lx] While Section 12(3) says that if no such stipulation is provided by the originator and acknowledgment is not made by the receiver within the particular time then the originator needs to send the notice affirming that acknowledgment must be sent by the time specified in the notice and if it does not happen then it would be termed that message has never been sent.
There are no particular provisions germane to principles for revocation of acceptance and Offer in click world Under the Information Technology Act, 2000 (2008). However an analysis of certain provision, it can be affirmed that originator is bound by the consequences of the act if he has received the acceptance which implies that the revocation of the offer is possible if the acceptance is not received and the addressee is also bound by the terms of the contract if the acceptance is put into the system and becomes beyond the control of him. Same as acceptance and Offer, no provisions are provided for consideration.
The use of electronic records as evidence has always been a point of discussion but as far as India is concerned, it has made them admissible in evidence after widening the scope of word ‘Evidence’ in the interpretation clause (section 3).[lxi]
Due to evidentiary value, it is permissible as evidence before the court of law.[lxii] Various sections like sections 85 A, 85 B, 88 A, 90 A and 85 C of Indian Evidence Act, 1872 are the result of the amendment happened in 2003 due to the formation of the IT act,2000 as to deal with the ongoing need of change due to increase in the use of internet. Whereas;
- Section 85 A says that every electronic record is permissible if the digital signature (electronic signature)[lxiii] is affixed to it,
- Section 85 B states that electronic record of the nature of an agreement affixed with digital signature should not be altered,
- Section 85 C affirms that the court, based on discretionary power, shall presume that the information listed in the certificate is not altered,
- Section 88 A provides that the court may presume that electronic message generated from the originator for the receiver corresponds with the message as feed into his computer for communication on the contrary the court should avoid making any conclusion regarding the person who has sent such message,
- Section 90 A states that there exists a valid electronic record if the court is satisfied that electronic record is of five years old affixed with the digital signature by the legitimate person and was stored under the care of person authorized for it.
The recognition of electronic documents as a shred of valid evidence has helped in curbing the cyber crimes as it provided scope to judges to handle the cases of cybercriminals where they used to get relief very easily due to absence of evidentiary value of electronic record before the enactment of the IT Act, 2000.[lxiv]
Conclusion
It is acknowledged that the affair of faith rests on the reciprocal appreciation of rights of parties participated in the contract. The trust is the sole requirement by the purchasers in their purchases. Nevertheless there is surprisingly considerable analogy in the contracts of the click world and brick world; still there is an inconsistency that calls for scrutiny.
The Information Technology (IT) Act, 2000 (The Information Technology (Amendment) Act, 2008) is not an option for electronic affairs in India. The traditional contract law and IT act, 2000, are supplementary to each other as far as India is concern that can be conveniently observed in the instance of abrogation and communication of affirmation and offer.
Since the IT act. 2000 is not the alternative; there is a requirement of uniform regulation precisely dealing with online contracts to preserve consumer benefits. There is a call for an analysis of the doctrines handling with the online contract due to the engagement of the technical hazards and the dynamic processes implicated in the online contract.
“The views of the authors are personal“
Reference
[i] The Invention of the Internet, HISTORY (2010), https://www.history.com/topics/inventions/invention-of-the-internet, (last visited Jul 3, 2020).
[ii] The Feds Get into Online Buying, (2001), https://books.google.com, (last visited Jun 24, 2020).
[iii] Karnika Seth, Cyber laws in the information technology age (2009), Lexis Nexis Butterworth Wadhwa & Co., Nagpur.
[iv] J.P. Morgan, E-commerce Payments Trends: India (2019), https://www.jpmorgan.com/, (last visited Jul 5, 2020).
[v] Simran Shah, E-contract and Issues Involved, Academia (2014), https://www.academia.edu/8719077/E_Contracts_and_Issues_Involved, (Last visited Jun 25, 2020).
[vi] Neeta Ghadge, A Study and Formation and Challenges of Electronic Contract in Cyberspace, legal service India (2015), http://www.legalserviceindia.com/, (last visited Jun 25, 2020).
[vii] Denis Keenan & Sarah Riches, Business law (9th edition 1990), Longman.
[viii] Supra note 2.
[ix] Donnie L. Kidd & William H. Daughtrey, Adapting Contract Law to Accommodate Electronic Contracts: Overview and Suggestions, 26 Rutgers Computer & Tech. L.J 215 (2000), https://heinonline.org/, (last visited Jul 12, 2020).
[x] The UNCITRAL did not give any specific definition of an online contract rather defined that the contracts can be concluded by exchanging data messages. This can be found in almost every act that is dealing with the electronic contract.
[xi] Sung-Ho Park, A Comparative Legal Research on Contract Formation via Electronic Means: Time-Lag of Contract Creation in the International Sales Transaction, 10 Journal of Korea Trade (2009). (Last visited Jul 12, 2020).
[xii] Bimal N Patel, Mamta Biswal & Joshua Nathan Aston, International contracts: Jurisdictional Issues and Global Commercial and Investment Governance: a Collection of Essays on Recent Trends 168 (2014), Gujarat National Law University, India.
[xiii] It means inviting other parties to make an offer. The ‘invitation to treat’ does not legally bind the parties.
[xiv] Seth, supra note 3.
[xv] Vernon v. Qwest Commc’ns Int’l, Inc., No. 09-cv-01840-RBJ-CBS, 2012 WL 768125, at *11.
[xvi] Van Tassell v. United Mktg. Grp. LLC, 795 F. Supp. 2d 770, 789 (N.D. 111. 2011).
[xvii] Hotmail Corporation vs. Van $ Money Pie Inc. 1998, WL 388389, 47 U.S.P.Q. 2d (BNA) 1020 (N.D. Cal. 1998).
[xviii] i. LAN Systems, Inc vs. Netscout Service Legal Corporation, 183 F Supp. 2d 328 (D. Mass 2002).
[xix] Boykin, D, Survey of E-Contracting Cases: Browsewrap, Clickwrap, and Modified Clickwrap Agreements, The Business Lawyer, 68(1), 257-262 (2012), www.jstor.org/stable/23527090, (last visited July 10, 2020).
[xx] The Uniform Computer Information Transactions Act (UCITA), 1999, § 209. It states that the terms and conditions of the mass-market licenses can only be effectively adopted if the other party agrees to the license by manifesting his or her assent before or during the party’s initial performance or use and access of the information
[xxi] The Uniform Computer Information Transactions Act (UCITA), 1999, § 112. It allows the manifestation of assent through electronic means. It has laid down that if a person intentionally engaged in conduct to give assent to term and service of the agreement with a belief that his conduct would be construed as an acceptance then the given assent would be binding in nature.
[xxii]UNCITRAL Model Law on Electronic Commerce, 1996, Art. 11. It states the Formation and validity of contracts: In the context of contract formation, unless otherwise agreed by the parties, an offer and the acceptance of an offer may be expressed employing data messages. Where a data message is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that a data message was used for that purpose, https://uncitral.un.org/ (last visited July 14, 2020).
[xxiii] Christopher L. Pitet, The Problem With “Money Now, Terms Later”: ProCD, Inc v. Zeidbenberg And The Enforceability of “Shrink Wrap” Software Licenses, 31 Loyola of Los Angeles Law Review, 325, 6.
[xxiv] Contract Law. Shrinkwrap Licenses. Seventh Circuit Holds That Shrink-wrap Licenses Are Enforceable. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), (1997), Harvard Law Review, 110(8), 1946-1951. doi:10.2307/1342053.
[xxv] Seth, supra note 3.
[xxvi] ProCD Inc. v. Zeidenberg 86 F.3d 1447, 39 U.S.P.Q.2d (BNA) 1161 (7th Cir. 1996).
[xxvii] Step-Saver Data Systems v. Wyse Technology 939 F.2d 91 (3d Cir. 1991).
[xxviii] The Uniform Commercial Code, § 2-204. It states that Formation in General.
[xxix] The Uniform Commercial Code, 1952, § 2-206. It states Offer and Acceptance in Formation of Contract.
[xxx] Simone Hill, ‘Flogging a Dead Horse – The Postal Acceptance Rule and Email’ 17 Journal of Contract Law 151(2001).
[xxxi] Yee Fen Lim, Cyberspace Law; Commentaries and Materials, (2007), Oxford University Press, New Delhi.
[xxxii] Seth, supra note 3.
[xxxiv] Nolan, Donal, Offer, and Acceptance in the Electronic Age, Andrew Burrows and Edwin Peel (eds), Contract Formation and Parties 61-87, (2010), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3082505, ( last visited July 17, 2020).
[xxxv] Wolfgang Kilian & Amelia H Boss, The United Nations Convention on the Use of Electronic Communications in International Contracts (2008), Kluwer Law International.
[xxxvi] Donal, supra note 33.
[xxxvii] Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] SGHC 71, [2004] 2 SLR 594 (affd: [2005] SGCA 2, [2005] 1 SLR 502).
[xxxviii] Convention on Contracts for the International Sale of Goods (CISG) , 1980.
[xxxix] Convention on Contracts for the International Sale of Goods (CISG) Art. 13. For this Convention “writing” includes telegram and telex.
[xl] The UNCITRAL Model Law on Electronic Commerce, 1996, Art. 7. Definition and form of the arbitration agreement.
1. “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or the form of a separate agreement.
2. The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract, https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration, ( last visited July 11, 2020).
[xli]The Information Technology Act, 2000, § 10-A. Validity of contracts formed through electronic means. -Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or employing an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.”
[xlii] Bimal N Patel, Mamta Biswal & Joshua Nathan Aston, International Contract: Jurisdictional Issues and Global Commercial and Investment Governance: a Collection of Essays on Recent Trends 173 (2014), Gujarat National Law University, India.
[xliii] Maneck Mulla, the validity of electronic contracts in India, volume 11 MONDAQ (2019), http://www.mmullaassociates.com, (Last visited Jul 2, 2020).
[xliv] Nishith Desai, E-contracts in India agama law (2015), https://agamalaw.in/2015/06/03/e-contracts-in-India, (last visited Jul 7, 2020).
[xlv] Supra note 25.
[xlvi] The Indian Contract Act 1872, § 10. “What agreements are contracts” … All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
[xlvii] Supra note 16.
[xlviii] Supra note 7.
[xlix] Supra note 39.
[l]The IT act, 2000, signed by then-president K.R. Narayanan in 2000 and was a result of the work of then-Minister of Information Technology, Pramod Mahajan, was the much-needed act in the parlance of Indian law due to the increase of use of the internet. It contained 94 sections, divided into 13 chapters and 4 schedules.
[li] ‘Preamble’, the Information Technology Act, 2000 (Act 21 of 2000).
[lii] Supra note 13.
[liii] Supra note 12.
[liv] The Indian Contract Act, 1872, § 3. Communication, acceptance, and revocation of proposals.—The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking, by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it.
[lv] The Information Technology Act, 2000, §13. It talks about the provisions on Time and Place of Dispatch and Receipt of Electronic Record.
[lvi] The Indian Contract Act, 1872, § 4. It says that the communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor and as against the acceptor, when it comes to the knowledge of the proposer.
[lvii] 1966 AIR 543, 1966 SCR (1) 656.
[lviii] AIR 2006 All 23, 2006 (1) AWC 504.
[lix] The Information Technology Act, 2000, § 13 (3). It states Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business and is deemed to be received at the place where the addressee has his place of business.
[lx] The Information Technology Act, 2000, § 12(2). It states that where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgment of such electronic record by him, then, unless acknowledgment has been so received, the electronic record shall be deemed to have been never sent by the originator.
[lxi] The Indian Evidence Act, 1872, § 3. ‘Evidence’ means and include- (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
[lxii] The Indian Evidence Act, 1872, § 65B. It talks about the admissibility of electronic evidence in court proceedings.
[lxiii] The Information Technology Act, 2000, § 5. It gives legal recognition to digital signature says -Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of [electronic signature] affixed in such manner as may be prescribed by the Central Government.
[lxiv] Vishwanath Paranjape, Legal Dimensions of Cyber Crimes and Preventive Laws with Special Reference to India (2020), https://sg.inflibnet.ac.in/jspui/bitstream/10603/75367/8/08_chapter%201.pdf, (last visited Jul 12, 2020).
