Title: Electronic Contracts: A Comparative Study of India and USA
Abstract: The proliferation on electronic commerce in the conduct of day to day business worldwide continues to grow. With this growth comes the need for guidelines for electronic commerce and certification of the validity of electronic transactions. In recognition of the increasing number of international transactions executed by means of electronic commerce. In 1996 the United Nations General Assembly adopted the Model Law on Electronic Commerce of the United Nations Commission on International Trade Law (UNCITRAL). The decision by UNCITRAL to create model legislation on electronic commerce was made in response to a number of countries having inadequate or outdated current legislation governing communication and the storage of information that does not contemplate electronic commerce. Certain current legislation restricts modern modes of communication by requiring the use of written, signed or original documents. The law of contract being the area of private law and the brain child of corporate world the underlying postulate in any legal regime governing contractual relations is, that the contracting parties must get freedom to contract, adhere to the terms and conditions of contract and also get adequate redress in the event of breach thereof. The basic issues involved any contract are : Intention to enter into legal relations; Proposal; Acceptance; Communication; Consideration; Competency of parties; Remedies for breach contract. American and international law on electronic contracts appears to have resolved the doubts previously applicable to 'shrink wrap' and 'click-wrap' contracts. Difficulty may arise in determining the appropriate jurisdiction of the execution and performance of a contract that has been entered into electronically. For example, if resident of Malaysia entered into a contract with a resident of France by 'executing' a click-wrap agreement, was the contract executed in Malaysia or France? Few U.S. courts have addressed the question of whether merely entering into a contract over the interment is enough for a party to the jurisdiction of the courts of the other party in another U.S state. Merely entering into an electronic contract, by itself, does not establish 'minimum contracts' with another state. The exercise of personal jurisdiction by a state may be premised on the existence of the electronic contract, coupled with a party’s deliberate and repeated contracts with the forum state. Negotiating, entering into, performing or breaching a contract may be sufficient to subject a party to personal jurisdiction under the 'long-arm' statutes of many states. The legal issues and problems arising from cyber contracts have not so far been properly addressed or adjudicated by our courts in India and so the skepticism of the contracting parties regarding the legal principles to be applied is not well founded despite the fact that the information Technology Act 2000 and the allied amendments to Indian Penal Code, 1860; the Indian Evidence Act, 1872; the Bankers Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934 is a timely legislative attempt to tackle some of the complicated legal issues and problems. The Information Technology Act is supplemental to the existing provisions of Contract Act 1872. A critical and comparative appraisal of the existing legal regime governing cyber contracts in India and USA is the theme of this paper.
Publication Year: 2009
Publication Date: 2009-09-08
Language: en
Type: article
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