Computer Law And Security Review: Analysis Of Electronic Contracts

Discussion

Discuss about the Computer Law and Security Review.

Contract is an intended agreement or arrangement between the parties enforceable by law to bind the terms and conditions of a legal contract. Legal contract may either be in a written form or in oral form but the same should have two important components which are offer and acceptance. The contract or agreement should be offered by one party mentioning all the relevant details should be accepted by the other party. In order to discharge a contract the parties may use several modes like contract by electronic means, contract by traditional means in writing or in oral form (Jinzhao, Ju’e and Wenjun 2015). The assignment presents the contract created by electronic means by comparing its features from the contract created by other means. The explanation on the reliability of offers being displayed on the internet is to be examined by considering the electronic transactions act. The assignment also highlights the procedures to create the contract by offer and acceptance elements between the consent parties to enforce the same as per the legislations. Additionally, analysis of withdrawal of mistaken offer in the contracts or agreement have been done and explained with reference to the relevant case laws. Moreover, electronic forms of contracts have certain limitations and problems with respect to the authenticity, reliability and other critical issues that have been highlighted in the present assignment (Abdullah et al. 2015).

Creation of contract by the electronic means is regulated by the Electronic Transactions Act 1999 which ensures that an agreement as per commonwealth law is valid since the same has been conducted through electronic modes. In order to create a valid and legal law, it is important to provide the relevant information in writing along with the signature to authenticate the contract. It also requires the contract to be supported by evidences in material form for the purpose of recording and retention. According to the Electronic Transactions Act 1999, communication through electronic means producing the information for communication purpose through data, images or texts by the process of electromagnetic energy (Hu and Vincent 2016). The legislation has been formed to create the importance and validity of the electronic contract between the parties. It is important to create the validity of the contract by electronic communication therefore the creator is required to authorize and send the contract through “purported originator” (Azari and Azari 2015). Formation of contract and its validity is formulated and regulated by the provisions of Common Law of Contracts. There are certain differences in the creation of contract through electronic mode and through traditional mode. In the present era internet is the strongest tool in the modern business that helps in connecting organizations and consumers for the purpose of trading and conducting business functions (Oliver and Fleming 2015). The electronic mode of contract includes the contract by way of fax, telephone, e-mails and website that transfers the information and communication between the parties. Contract through electronic means provide several benefits to the parties with respect to the time saving, low cost of dispatching the documents, connecting the parties from different locations at the right time and such other benefits. On the contrary, contracts created by traditional means or by the mode of paper demands ample of time for its formation and the parties have to be in same location for the confirmation of the documents (Boss 2015).

Withdrawal of Mistaken Offer

Although internet is the most powerful and fastest tool to transfer the communication and information in a contract, it is essential to provide genuine information to the parties. It is difficult to ascertain the authenticity of the offers made by the contractual party over the internet. Therefore, it is important to place the offer in a contract through internet to be readily accessible through electronic modes supported by the relevant sources and references. In case the offers are not readily accessible or if the contracts are not supported by material evidences then it can be said that the offers and displays on the internet may not be actual offers. In case of contracts in paper mode it is important to be in writing with a specimen signature of the parties to validate the offer and acceptance of the agreement (Bayern 2015). However, in case of electronic contracts physical or manual signature is not possible therefore to validate the offer through internet the information must flow through a storage device. In case of contracts on internet actual offers provide the method of accepting it on the party’s approval because unauthenticated or non- actual offers do not have such methods of approval. Further, actual offers also depend on the reputation and loyalty of the contractor party that is placing the offer on the internet (Jinzhao, Ju’e and Wenjun 2015). For instance, offers placed by the companies or organizations like Woolworths, Commonwealth Bank, Wesfarmers and other reputed companies are always actual offers. However, many a times some offers flashes on the internet are not genuine and actual which is difficult to verify by the receivers or contractual party. Such offers can be detected by confirming the approval mode available on the offered contract, readability and its accessibility (Harold et al. 2016).    

Online contracts or contracts through internet are formed by several methods like electronic mail, website, and click-wrap. In a contract offer is the communication indicating a promise to act the specific service for the concerned party of the contract to whom it is offered to. Such offer is required to be accepted by the concerned party in return of consideration and by placing the approval through the method specified in the contract. In case of contracts through email, offer is send via electronic mail to the recipients including the material documents as evidence and for the authenticity. Such offer is accepted by the party by accessing the approval method provided along with the contract document either by specifying the digital signature or by other electronic method specified by the contractor (Chen-Wishart 2015). Besides, in case of website or webmail offers are placed through common website page that is accessible to all the users. Such offers should be accepted by the parties by fulfilling all the requirements as provided in the contracts along with the specified mode to transfer the required documents for the valid and legal enforcement of contract between the parties as decided in the case of CSX Transportation Inc. v. Recovery Express Inc. Unlike emails, contract through website is not meant for particular consumers or receivers while it is meant for the accessibility of all the users of the website (Scharkow 2016). Another mode of contract through electronic communication is click- wrap which is similar to that of website communication. This method is used by the potential sellers to place offers that strengthen the customer base as well as to sustain their business organizations. The offers must be accepted by the consumers through the mode specified in the offer as well as within the requisite time. Such procedures ensure the authenticity and validity of the offers through electronic mode (Perrine 2016).

Dispute Resolution in Electronic Contracts

According to the section 15D of the Electronic Transactions Act 1999, a statement or document including offer and acceptance may include some errors or mistakes while drafting or dispatching the contract. In case the contract contains any error or mistake in the offer unknowingly or unintentionally, then such mistake should be communicated for rectification by the contractor as soon as the party comes to know about the mistake. In communication with the contracting party, the offer can be withdrawn if the mistake is not being able to be rectified. However, such withdrawal should be as per the mutual decision between the contracting parties (Bagheri and Hassan 2015).

Based on the decided case of ProCD, Inc. v. Zeidenberg, the court provided the judgment on withdrawing the offer because the mistake committed by the offering party could not be rectified to validate the contract. In case of contract through electronic means mistakes or errors may be communicated to the parties by using the system of automated messages right at the time of its awareness. The contracting party who offered the agreement or the person who acted on behalf of the contracting party is required to notify and communicate the error to the concerned party before its withdrawal.

In case the mistake is minute and can be resolved for further processing of the contract then the same shall be communicated with the other party of the contract before taking any step for its rectification. However, the right of withdrawal of the mistaken part of the contract or to terminate the entire contract lies with the mutual decision by the parties and in accordance of the provisions of other contract law (Guo et al. 2015).

In case of any disputes between the parties of the contract, there is provisional assistance available to resolve the disputes. If the dispute occurs from the part of the contractor party then the either the dispute can be communicated among the parties themselves to resolve or the other party has the right to file a complaint against the disputed party (Kourandi, Krämer and Valletti 2015). The matter can either be resolved through arbitrage process where the parties agree to accept the decision of the arbitrator selected as per the mutual agreement of the parties to the contract. In case the matter cannot be resolved through arbitrage process then the same can be constituted in the tribunal courts where the judgment of the commissioner is applicable to both the parties (Carvalho 2015).

Limitations and Challenges of Electronic Contracts

Considering the several aspects of the contract through electronic mode, there are several limitations and challenges that questions the validity of the contract under the legislations. Electronic mode of contract or communication or even a business takes place virtually unlike the physical or traditional mode therefore it is critical to evaluate the legality of the virtual form of contract between the parties. One of the major risks in electronic contract is the authenticity and reliability of the parties to the contract. Since most of the contracts require digital signature to validate the same, it is difficult to rely on the identity of the person using the digital signature. Another limitation of the electronic contract is the lack of knowledge of applicable provisions of several laws and through electronic mode it becomes difficult to explain each of the clauses. Other limitations includes lack of proper internet connectivity in several regions, uncertainty and lack of knowledge in operation of electronic means hamper the communication and legal enforcement of the contract (Wolak 2015).

Conclusion

Many territories across the globe are moving towards the mode of electronic communication for the purpose of international trade and Australia is one of the fastest regions to adopt the electronic method. Unlike traditional mode of creation of contract electronic mode is faster and considers covering as many consumers from different locations. However, the contract through electronic mode requires to be created in the form that is readily accessible and supported by the documents for its authenticity and validity. According to the common law and the act that governs the provisions of contract through electronic mode specifies the time and mode of dispatch of the contract as well as the required documents. Moreover, in case of any errors or mistakes in the form of contract appears then the same shall be communicated between the parties through system messages or through other electronic means. Withdrawal of contracts for any mistakes in the offer is considered according to the other provisions of the common law as well as according to the mutual decision of the concerned parties. Further, the contract through electronic means have several issues with respect to the reliability and authenticity because the parties, documents and signature are not physically accessible. On the contrary, in the era of modern business activities most of the trading is carried by using electronic mode by creating legal offers. Apart from that, the Electronic Transactions Act 1999 also regulates the authenticity of the electronic contract and other required documents that are legally enforceable between the parties for offer and acceptance.

Reference List

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