Discuss about the Contract Law for Text, Justice, and Materials.
With the growth of eCommerce, electornic communication and contracts have been very common.Davidson (2009) defined electronic communication as the convey of information in many different electronic forms like text, image, video. Electronic contracts are those that are formed with the use of any mean of electronic communication such as email. The use of electronic contracts increased after the implementation of the act “Electronic Transaction Act 1999″. The main aim of this paper is to discuss the contracts that are created through electronic means or electronic contracts. This paper discusses the differences in the formations of contract via electronic means to the contracts that are made by other ways. It also discusses the validity of offers and displays through electronic media as internet, the way offer and acceptance can take pace, withdrawal of a mistaken offer, legal assistance available to parties in the case of a dispute, and issues related to electronic contracts.
Similarities and Differences:
There are some similarities among the contracts that are built through electronic ways or other means. For example, it is evaluated that for the formation of all the contracts including electronic, oral, written, etc. there is need to ensure the availability of basic elements including a valid offer and acceptance, consideration, competent parties, and legal objectives. Additionally, for the formation of contracts, according to the ‘Commonwealth law’ parties need to provide written information, allow signature that are handwritten, develop a document in a tangible way, and recording and holding of the information. But, in the case of an electronic contract, it is necessary that the parties do all these requirements electronically.
There are also some other requirements for the formation of an electronic contract. These include place and time of the dispatch and electronic communication’s receipt. It is because if there occurs any issue in relation to the electronic contract, all these terms are used to resolve the dispute. In addition, it is also important for the development of an electronic contract that the offeror and offeree use an electronic channel to make the contract. It is also assessed that for the execution of the electronic agreements, electronic signatures are also necessary to ensure the validity under Australian and international law.
In addition to different paper contracts, an electronic contract has also other requirements. For example, the contract must be stored in an appropriate manner and can be assessed after the implementation. Moreover, it is also essential that the parties agreed with each-other to provide or receive the information ‘either expressly or impliedly’ in an electronic manner.
A range of mediums including newspaper, radio, television, printed catalogues, and internet websites are used by commercial traders to promote their products. Most of the advertisements for the goods’ sale are not considered offer, but are referred as invitations to treat. However, in some situations, the advertiser can go further and make an offer.
It shows that all the offers and displays on the internet are not actual offers because these are addressed to various unspecified persons and therefore does not demonstrate a purpose by the offeror to be bound by any receiver. For example, ‘a manufacturer or the exporter produce a product catalogue for the sale of the goods will not be an offer normally because it is dealt to many unspecified people, and thus does not show an intention by the manufacturer to be bound by any purchase orders arising from the catalogue’. As per the common law, if a proposal deals with more than one specific person, it is regarded just an ‘invention to make offers’. The article states that it is essential that a contract specifies the terms of the contract to make it a valid offer. Thus, offers and displays on the internet would normally be an invitation to make the offer, and is not an offer itself, unless there was a statement in it stating that the offeror will do something for a specific consideration as per the offer. For example, a display on the internet as the offeror will supply the goods at the price stated in the offer will be an actual offer regardless of who accepts the offer.
But, at the same time, it is also found that display of goods/services on a website may amount to an offer. For this, it is necessary that the internet site is formulated and formatted in such a manner as to promote the development of contract. Along with the language, which is used for the website, the ‘type of website’ is also applicable to ensure that displays on the internet are offers.
Offer and acceptance in an electronic contract may take place between parties in several ways. The offer may take place in the following way:
Offer: The Common Law Position
An offer refers to the act of indicating willingness by an individual to another to form a contract. Additionally, it is also important that the offer’s terms must be clear satisfactorily to permit a contract to be made through the acceptance without any further talks. Moreover, it is also important that the offeror’s intention to be bound by those terms must be clear. To any person, an offer can be made. In contrast, if a proposed offer does not show all these elements, it will be related to an ‘invitation to treat’, which cannot be enforced due to the lack of a binding contract through the terms acceptance. Additionally, it is also assessed that if common law is implemented to make an offer, there is no effect of the ‘The Electronic Transactions Act 1999 (Cth). Thus, it can be stated that by using any method of electronic communication, an offer, which states all the terms clearly can be made by the parties.
The universal principle is that when and where an acceptance is transmitted to the offeror, a contract is prepared. There is no particular method prescribed by the law for the acceptance of an offer. It is essential that the acceptance must match to the offer and be incompetent in its conditions. There are two situations that offerees can face while accepting an offer. In the first situation, the method of acceptance can be dictated by the terms of offer. For example, the offeror can demonstrate in the offer that the offeree must sent his/her acceptance via reply of the mail by a certain date’. In such situations, the acceptance will only be legal if it follows the terms offered by the contract. Another situation is that no indication of a suitable method of acceptance in the offer. In this situation, the offeree can accept the offer by using the same or equivalent method as followed for making the offer. For instance, if the offer has been ended through the use of an email, an acceptance may also occur through the use of email.
As per the Commonwealth Law,’ an offer become in effect when the another party or offeree receives it’. A mistaken offer can be drawn back by the party in the case when the information about the withdrawal reaches the earlier or at the same time as the offer reaches the offeree. Under Article 24, when the offer for the contract arrives at the offeree either by word of mouth to him or handed over by any other way to him in a personal way, to his mailing address, etc. For example, if a purchase order is sent by an ordinary mail by the buyer, it can be validly withdraw the offer by email earlier the purchase order is received by the seller.
Even after ‘an offer is received by the offeree, the offeror could cancel the offer, if the revocation arrives to the offeree earlier an acceptance of the offer is dispatched by the offeree’. But, at the same time, if the offer opens for a fixed time period, the offeror cannot revoke the offer during the fixed time period.
In the case of a dispute in electronic contracts via mail, adequate legal assistance is available. The main purpose of ‘the Commonwealth’s Electronic Transaction Act 1999 (the Act)’ is to assist transactions that are made electronically. As per this act, a dealing among parties is not invalid because it happened to a degree or completely by means of one or more transmissions. To handle the disputes, the act considers electronic communication’s receipt as well as when and where the contract has been completed ‘. This act ensures that a deal under a Commonwealth law would not be invalid merely because it was carried on by electronic communication. Additionally, to ensure the implementation of this act and save the parties of the contract, ‘the Governor in Council’ may make regulations in relation to anything permitted by this act.
The Electronic Transaction Act (1999) also considers the place and timing of dispatch as well as electronic communications’ receipt. But, it is difficult to determine when the contracts formed through email will be viewed as ‘formed’. Therefore, there is uncertainty about the answers of the when and where questions. Additionally, regarding this issue, there is no statute law in Australia or case law exists. Thus, the answers of both these questions create an issue for the formation of contracts by electronic means.
Time:
In relation to the electronic communications, the act considers ‘the time of dispatch (s 14(1) and (2)) and time of receipt (s 14(3) and (4))’. The crucial time in the contracts making is acceptance and as per the general rule, it is necessary that there is actual communication of that acceptance. The time of receipt is viewed as to happen ‘when the electronic communication enters [the] information system [designated by the addressee]’ (s 14(3))’. It means that in the case of email, receipt would occur ‘when the message enters the addressee’s electronic mailbox’. Most of the time, it is difficult to determine when the message is actually received by the offeree.
Place:
The question of where is addressed by the act as ‘Sections 14 (5) and (6) cover place of dispatch and receipt of electronic communications. For the purpose to any subsequent jurisdiction issues, the section realizes the importance of ‘place’ in an specific manner. The act differentiates effectively between the place of transmission or receipt that is viewed for and the actual place where the message is dispatched and/or received. In some circumstances, it is also difficult to find the actual place of the information sent and received.
Thus, it can be stated that the time and place related issues are the important issues in forming and handling electronic contracts.
Observation
At some extent, my views also agree to the discussion in this paper. It is because I also believe that electronic contracts are similar to other contracts as there is need to make a valid offer and acceptance, proper consideration, and legality of the objects. Additionally, I also view that all the offers and displays on the internet should not be considered as the offer until there are some specific terms about the offer. It is because due to just a display on the internet, an individual cannot bind the another person to perform that offer. At the same time, in my opinion, the other methods of making a contract such as written and oral contracts are good in comparison of the electronic contracts. It is because the issues related to the timing and place of making an electronic contract as well as the lack of adequate case laws, discourage me to form an electronic contract. Thus, it can be discussed that to ensure the popularity of electronic contracts, it is essential that there is proper laws, which address all the issues related to such kind of contracts.
Conclusion
On the basis of above discussion, it can be stated that electronic contracts are similar to other contracts at some extant as in the formation of these contracts there is also need of a valid consideration, offer and acceptance, competent parties, etc. The main differences are related with the necessity of using an electronic communication and time and place importance in electronic contracts. It can also be stated that by using any electronic communication channel, an offer can be made by the offeror, which also states the terms and conditions of the contract. Similarly, offeree can accept the agreement by using the similar channel. It can also be stated that all the offers and displays are not actual offers until it specifies some terms such as consideration, etc. It can also be summarized that the offeror can withdrawn a mistaken offer before the actual offer reaches to the offeree. In last, it can also be concluded that it is necessary to overcome issues related to time and place in the formation of electronic contracts to enhance their viability.
References
Australian Government, Ecommerce (2016) <https://www.ag.gov.au/RightsAndProtections/ECommerce/Pages/default.aspx>
Christensen, Sharon, ‘Formation of Contracts by Email – Is it Just the Same as the Post?’ (2001) 1(1), Queensland University of Technology Law & Justice Journal 22
Clark, Eugene, Cyber Law in Australia (Kluwer Law International, 2010)
Davidson, Alan, The Law of Electronic Commerce (Cambridge University Press, 2009).
Delaney, Hayden and Francis, Briar, Electronic signatures and their legal validity in Australia (2016) https://www.findlaw.com.au/articles/5777/electronic-signatures-and-their-legal-validity-in-.aspx
Galaty, W Fillmore, Allaway, J Wellington, and Kyle, C Robert, Modern Real Estate Practice in Ohio (Dearborn Real Estate, 5th ed, 2001)
Malbon, Justin and Bishop, Bernard, Australian Export (Cambridge University Press, 2010)
Malcolm, Jeremy, Multi-Stakeholder Governance and the Internet Governance Forum (Terminus Press, 2008)
McKendrick, Ewan, Contract Law: Text, Cases, and Materials (Oxford University Press, 2012)
Simone, W B, Hill, ‘Email contracts –When is the contract formed?’ (2001)12(1) Journal of Law, Information and Science 46
Victorian Current Acts (n.d) <https://www.austlii.edu.au/au/legis/vic/consol_act/eta2000345/s15.html>.
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