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10-28-2009, 05:54 PM
ELECTRONIC CONTRACT IN THE LOCAL LAW




Submitted To : Dr. Fayyad Al-Qudah <<
Submitted By : Yasmin Ihab Abdo <<







Electronic Contract


1) Definition of E- Contract
Electronic commerce is usually defined as "the conduct of commerce in goods and services, with the assistance of telecommunication and telecommunications-based tools ".


Electronic Transactions: “Procedure/s, applied between two parties or more for establishing obligations upon one party, or mutual obligations between more than one party in relation to a business transaction, or a civil obligation, or a relationship with any government department, implemented by electronic means.”
  

 
 
“A contract under (Art 87 J. Civil Law ) is the joining and consistence of the offer from one of the contracting parties with acceptance from the other in a manner which proves the effect thereof on the object of the contract and the obligation of each party by what he is bound with to the other”.
And an” E-Contract : Agreement firmed by electronic means, in whole or in part”. (Art 2 J. E-Transactions Law), Electronic means: “The technique of the use of electrical, magnetic, photic or electro-magnetic means or any other similar means in the interchange and storage of information”.



2) Elements Of E-Contract
The E-Contract like any other contract should have elements or conditions to be valid and correct , and these elements are :
1- E-Offer:
Its really intent to have a contract forward special person , or to public and the offer must be obvious and clear, and it can be in a written manner or verbal or by any situation with no doubting about the offer .
In the E-contract we can see the E-offer by :
Website ( Web pages ) some company advertise via their own websites .
In this case they not determine any person , so its for public , and this offer consider as general offer , If consumer want to buy this product he will send E-mail to company .
But recently ( websites ) want to determine the consumers who work in some field by sending E-mail to consumers who may care about their product , and such E-mail consider as E-offer .


 
 
Many websites now clarified that this advertisement is just as invitation for treat , and when the consumer send Email , this mail consider as E-offer and they do that because many website have a huge wastage of their many counter offer .


In the J. Civil Law determine the formation of contract in :
Art (90): “The contract shall be made as soon as the offer is joined with acceptance subject to the conditions which the law in addition prescribes”.
Art (91):”1- Offer and acceptance are each a word used by custom to make the contract and the prior word is the offer and the second is the acceptance”.



 
2- E-acceptance.
Jordanian civil law explain in art (93) that acceptance is” the expression of the will shall be by word, witting, the customary sign even from a person who is not dumb, the actual exchange denoting consent and by any other behavior which in the circumstances leaves no doubt of its indication of consent “ .


The E-acceptance must be in electronic way , and must be identical with the offer, other wise it will consider as new offer ( counter offer ) .


The acceptance could be in written way or verbal , but it must be obvious and clear.
The acceptance by internet have two ways :


By website it self , the person who accept the offer , he have to fill or enter his personal data and defray the coast of product.
By sending E-mail to dealer or merchant telling him that you accept his offer .



3-Subject Matter of E-contract .
The typical subject matter of contracts currently formed over the internet is under three broad categories:


1- Contracts for the sale of physical goods. This arise where a Web page is being used in conjunction with more traditional advertising as an alternative shop window, e.g. for the sale of books, cars or computers. Although the contract is formed over the Internet, the performance by the supplier is constituted by the dispatch of the goods to the purchaser.


2- Contracts for the supply of digitized products. This kind of contracts involve the on-line supply of data, such as software, text or multimedia products, often together with the granting of a license of any copyright material comprised within the products.
3- Contracts for the supply of services and facilities. This would include on-line banking and other financial services, the giving of professional advice over the Internet and, increasingly, the provision of voice telephony and potentially video-conferencing.


4- At present the majority of contracts are probably formed between businesses and consumers, rather than between businesses themselves.


4- Parties Of an E-Contract
1- An Offeror (Originator): is a person who by himself, or deputizing for another person, generates or sends a data message before the message is received or stored by the addressee.


2-The recipient of the offer (Addressee): is the person who is intended by the originator to receive the data message.


5- Time of E-Contract
We have to distinguish if the contract happened between absent parties or attendant parties :


If the contract happened between attendant parties we don’t have problem because when the offer meet the acceptance , we will get contract because there is no interim even in place or in time .


In the second case if the contract happened between absent parties the J. Civil Law approached in art (101) and (102) :


 
Art (101):”if at the time of contracting the two contracting parties shall not be present the contract shall be deemed to have been made in the place and at the time of acceptance unless there is an agreement or legal provision to a different effect”.


Art (102):”contracting by telephone or any similar method shall in respect of the place be considered as if it has been completed between two contracting parties not present when the contract was made, but in respect of time it shall be considered as if it has been made between two present parties”.
Under Jordanian Electronic transaction law is completely different from civil law because art (17) stated the following :


1- Time of Dispatch:
Unless otherwise agreed between the originator and the addressee the dispatch of a data message shall occur when it enters an information system outside the control of the originator or the person who sent the data message on behalf of the originator”.


2- Time of Receipt:
A) If the addressee has designated an information system for the purpose of receiving electronic messages, the message shall be deemed to have been actually received upon its entry into such a system. However, if the message is sent to a…
…system other than the designated system, the message shall be deemed to have been received upon the addressee’s retrieval of the message for the first time”.
B) If the addressee has not designated an information system for the purpose of receiving electronic messages, the message shall be deemed to have been received at the time of the message’s entry into any information system belonging to the addressee”.


The Jordanian E-Transaction Law take the same opinion (just like) which it is mentioned in art (15/1+2) in the UNCITRAL Model Law on E-Commerce.


 
 
6)Place of E-contract .
We have talk about place of E-contract , is it the inhabitation of consumer or where the website registered or the place of receiving the acceptance .


Jordanian Electronic transaction law under article 18 explain that the place of E-contract is place of originator work .

1- Place of Dispatch:

Unless otherwise agreed between the originator and the addressee, the electronic message shall be deemed to be dispatched at the place where the originator has its place of business

2- Place of Receipt:


and shall be deemed to be received at the place where the addressee has its place of business. If neither one has a place of business, its habitual residence shall be deemed to be its place of business”.

B-


Where the originator or the addressee has more than one place of business, the place of dispatch or receipt shall be that which has the closest relationship to the underlying transaction. When it becomes impossible to be preponderant, the principal place of business shall be deemed to be the place of dispatch or receipt.


The Jordanian E- Transaction Law has the same opinion which it is mentioned in art (15/4) in the UNCITRAL Model Law on E-Commerce.


7)Legal capacity
Every person has capacity to contract unless his capacity is lost or limited by virtue of the law.


Any one want to sign or treat a contract he must be:-
1- Attains majority :18 years old, but in time some children may buy by internet and have contract with the seller, in this case the parents or the guardian will be responsible person and he have to give the seller the price and that called (implied agency ). In Art (123) J. Civil Law determined who is the guardian :”The guardian of the minor shall be his father followed by the guardian appointed by his father followed by his lawful
 
….grandfather followed by the guardian appointed by the grandfather followed by the court or the guardian appointed by the court”.


 
2- Discerning contractor: should be not lunatic (mad person).




3)Exception of E-Contract
There are some contracts not consider as e-contract and art /6 of Jordanian Transaction Law stated the following
Article (6):
The provisions of this law shall not apply to:
A- Contracts, instruments or documents that are drafted in accordance with special legislation in a certain format or in accordance with specific measures, such as the following:


1- Establishing and amending Wills.
2- Establishing and amending the condition of the Waqf.
3- The transactions disposing of immovable property, including agencies pertaining thereof, their title deeds, and establishing real rights, excluding lease contracts.
3- The transactions disposing of immovable property, including agencies pertaining thereof, their title deeds, and establishing real rights, excluding lease contracts.
4- Agencies and transactions relating to civil status.
5- Notices relating to canceling or revoking water, electricity, health insurance and life insurance contracts.
6- Bills of indictment, court proceedings, judicial notification notices and courts decisions.


B- Securities, unless provided under special regulations issued by competent authorities in accordance with the Securities Law in force.




4) Evidence
According to (Art 7 J.E- transaction Law ).
A) The electronic records, contracts, messages, and signatures shall be considered to produce the same legal consequences resulting from the written documents and signatures in accordance with the provisions of the Laws in force in terms of being binding to the parties concerned or in terms of fitness thereof as an evidential weight.


B) The legal consequence stated in paragraph (A) shall not be excluded for reasons of conducting the transaction by electronic means so long as it complies with the provisions of this Law”.


According to (Art 8 J.E- transaction Law ).
A -“The electronic record shall fulfill its evidential weight and shall have the strength of the original copy if it fulfills the following conditions:
1- That the information stated in that record may be retained and stored and may be referred to at any time.
2- The possibility of retaining the electronic record in the form it had been generated, sent received or in any form that it accurately represents the information stated in the record during the generation, sending or receiving thereof.
3- That the information stated in the record is enough to verify its origin, receiving and sending parties and the date and time of sending and receiving.
B- The conditions stated in paragraph (A) of this article shall not apply to the information contained in the record if the purpose of this information is facilitate the sending or receiving of the information.


C- The originator or the addressee may use the third party to fulfill the requirements of paragraph (a) of this article.


 
Under Jordanian Evidence Law in a new amendment No (37) for the year 2001 provides about the Evidentiary Power of the E-mails, Fax and Telex in art (13/3):
A) Fax Letters, Telex and E-mails have the same evidentiary power of ordinary documents, unless the originator or sender proves that he did not send such or requested someone it on behalf.


B) Telex Letters with a password which is agreed between the originator and addressee to be considered as pretension upon both of them (the originator and addressee).
 
C) Computer Outputs which is certified or signed have the same evidentiary power of ordinary documents, unless the sender proves that he did not take out (print out) of it or requested someone to take out it on behalf.
Some of the differences between UNCITRAL Model Law and Jordanian E-Transaction Low:
1- In Art (1) on the UNCITRAL Model Law of E-Commerce provides the following :” This law applies any kind of information in the form of data message used in context of commercial activities”. So that the UNCITRAL Model Law limits the sphere of application under this article to commercial activities, while Jordanian E-Transaction Low was wider than the UNCITRAL Law by applying the law not only to commercial activities but also to civil obligations and transactions in relation to public department.
2- The Definitions : Jordanian E-Transaction Low defines more conception related to e-transaction such as :
A- Electronic Contract.
B- Electronic Signature.


 
C- Electronic Intermediary.
D- Electronic Record to Jordanian system by Authentication Procedures and Authentication Certificate.
On the other hand UNCITRAL Law ignored to mentioned the Authentication Procedures and Authentication Certificate about registration authority.


3- UNCITRAL Law defines Intermediary on art (2/e) :” A person who on behalf of another person, sends, receives or stores that data message or provides other services with respect to that data message” upon this definition the UNCITRAL Law defines the Originatorexception that the “Originator of data message means:
…. “A


person by whom or on whose behalf, the data message purports to have been sent or generated prior to storage, of any, but it doesn’t include a person acting as an Intermediary with respect to that data message”.


Under Jordanian E-Transaction Low was wider than the UNCITRAL Law, it stated that the originator a person who by himself or deputizing for another person generates or sends a data message before the message is received or stored by the addressee .
 

Thank you

Hosam Hawamdeh
10-28-2009, 08:38 PM
very interesting ! i'll return to continue reading

ÃÍãÏ ÃÈæ ÒäØ
04-22-2010, 03:24 PM
welcome hosam

WALEED ALZAWAHREH
04-26-2010, 02:31 PM
thank you man
it is a great