Nowadays it became common for us to conclude contracts and agreements electronically, for instance; these software agreements always require your acceptance before using the software features. In such cases, the terms of the contract will be presented on your device screen, for the purpose of ensuring that the acceptance matches the offer. The acceptance of such contracts and the conclusion thereof is also made according to the general rules of the Civil Code, where a contract is concluded as soon as the offer is linked to the acceptance, without prejudice to the special conditions required by law for the conclusion of certain contracts. An e-contract is a type of contract required by e-commerce over the Internet. It is a legal action made by the mutual consent of the parties thereto through various electronic methods.
Electronic contract formation
The composition of an electronic contract (offer and acceptance): The offer and the acceptance of an electronic contract are different than other contracts only in terms of the means used to express the desire and consent to the contract; which in this case is made by electronic means. The electronic transaction was defined as: “Any transaction, contract, or agreement concluded or executed, in part or whole, by means of electronic communications”. Thus, an electronic offer must be firm, and specific in terms of the language used in the contract. In addition, it must contain a set of data relating to the essential specifications/features of the goods or services in question, the technical stages to be followed for the electronic conclusion of the contract, as well as data on the service provider, payment, delivery, and execution arrangements.
Every step of the electronic transaction must be allowed to be corrected. As in the normal acceptance, an electronic offer can be binding if it is accompanied by a time limit, where the offeror remains committed for a duration of time. However, there is a special case where an electronic offer is binding as if the offer is kept on the offeror's web page.
For electronic acceptance, however, it is done by electronic means, where the receiver clicks on the designated button shown on the electronic page to express his/her acceptance to use the goods or service offered.
Formality in electronic contracts:
In this regard, the issue of formality arises in two matters: Writing and signing.
Writing (data message): If the law requires in any transaction that it be executed by writing, or implicates certain effects on the failure to do so, the transaction shall meet this requirement, if it is in the form of a data message. Provided that it is accessible so that it can be used with reference. A data message is defined as "information created, sent, processed, received, stored or displayed by one or more information systems or by electronic means of communication". Thus, a data message in an electronic contract is equivalent to the form of writing in the ordinary type of contracts.
Electronic signature: It became possible, nowadays, to sign an electronic contract but by various technical means such as:
- A digital signature consisting of a set of encrypted numbers or symbols used to identify the signatory.
- Signature pyro-metric as fingerprint, eye, or sound.
- Electronic handwritten signature by photographing a copy of the manual signature and converting it into an electronic file.
- Electronic pen signature, a special signature pen on a computer screen.
The time and place of the electronic contract:
The problem is whether the electronic contract is a contract in the presence or absence of the parties thereto. The conclusion of any contract between the parties, in presentia, is not problematic in terms of the time and place of concluding a contract. Where the time on which the contract enters into force is the time of expressing the corresponding acceptance of the offer made. This can be done in the same place where the contract is being signed. But sometimes the contract can be made between the parties without having the need to conclude a meeting between them. In this case, the offer, as well as the acceptance, needs time to reach the other party's knowledge. In determining the time and place of the contract in the case of concluding an electronic contract, the time of the receipt of the data message is the time when it can be accessed from the recipient in the mailing address it has previously identified. If, however, the data message is sent to an electronic address of the recipient other than the specified address, the time of receipt is the time of access, with the recipient knowledge that the data message has been sent at that address, or the time of retrieval of the data message, whichever is sooner.
The nature of electronic contracting:
This type of contract is made between parties that are not present at the same time or place at the time of its execution. However, there are some views that consider this type of contract as it is made remotely between the parties but at the same time in terms of the timing of its conclusion. In both cases, the applicable law does not require the parties to be present in the same place when concluding a contract, therefore it is a valid contract in both ways.
But why is it so important to determine the time and place of the contract?
According to the general rules of the Civil Code, determining the time of conclusion of a contract means that the offer cannot be reverted after this time. The time of transfer of ownership of the purchased object is thus determined. Therefore, the limitation periods and the deadlines for the fulfillment of obligations can be calculated. This matter falls within the discretionary powers of the competent court in the event of any dispute. The matter of determining the applicable law, in case there is a conflict of laws, shall also depend on the place of executing the contract. Moreover, determining the time on which the contract entered into force is important for determining the commencement of the agreed term to exercise the right of canceling the contract.
