Digital Agreements: The Evolution And Enforceability Of E-Contracts

Introduction

In today's world, we are seeing a broad and vast expansion in the internet and it use. We are getting used to the modern technology, leaving back the traditional methods. This technological advancement in the digital era due to globalisation, industrialization and modernisation, we can notice the changes that have taken place in the field of contracts. Due to this growth in the technology, we can see the emergence of E contracts i.e., electronic contracts. Electronic contracts are slightly different from the traditional contracts. Electronic contracts are same as other contracts but the agreement is made in the software websites and the e commerce websites like email, amazon, flipkart and other platforms. Contracts have become a part of one's life, and now e contracts are emerging where everything offer, acceptance, consideration etc. are taken place by electronic means. Before understanding what are e contracts, lets first understand what are contracts.

Contracts is defined in the Indian contracts act, 1872 which defines as an agreement which is enforceable by law is called as a contract¹, and where every promise or set of promises forming the consideration for each other is called as an agreement². An agreement is defined under section 2(e) of Indian contract act, 1872. Whereas, a contract is defined under section 2(h) in Indian contract act, 1872. Essentials of contract include offer, acceptance, consideration, free consent, intention to create legal relations and performance. These essentials of a contracts are also essentials of e contracts. Through internet, people sitting in different parts of the world can enter into an e contract without any difficulty or getting physically exhausted. E contracts usually take place in e commerce transactions. For example, when a person orders a product online and pays for it in online, then there is an e contract. E contracts are electronic and digital and not paper based. E contracts are time efficient i.e., they require very less time, these contracts are smooth and speed when entering as everything is done online. Due to technical advancements in this digital era the e contracts are said to have the improved the efficiency in contracts as the they are cost efficient, time efficient, they enhanced the security of the contracts and also e contracts are accessible remotely whenever and wherever as compared to the conventional contracts. The old, conventional and traditional contracts may include many expenses like paper and other things, these contracts are time consuming. Hence the e contracts are considered to be more efficient than the conventional contracts.

Same as the conventional contracts which are mentioned in the Indian Contract Act, 1872 have essential elements to consider that contract valid, the e contracts also have essential elements which make that e contract valid.

Essential of E contract:

• Offer- For a contract to be made, first there must be an offer, which means one party offers another party to do something or to abstain form doing something.³
• Acceptance- After the offer is made by one party, then the other party may or may not accept the offer, but if the offer is accepted by the latter then the contract is said to come into existence.⁴
• Revocation of offer and acceptance- In the contract, both the parties must have the ability to revoke the offer or the acceptance before the time limit provided in the
• Consideration- There must be a lawful consideration in the formation of a contract or an E contract.⁵
• Object- The object in the contract or an E contract must be lawful i.e., it must not be fraudulent to law or illegal.
• Competent parties- The parties coming into a contract or an e contract must be competent to enter into a contract or an e contract i.e., the parties should not be minor, unsound mind or forbidden by any law.⁶
• Free consent- To enter into an e contract or a contract the parties must enter into the contract with free consent i.e., without fraud, coercion, undue influence and misrepresentation.⁷

But in an E contract the consent of the parties is a bit difficult to determine, as the parties do not physically meet to enter into the contract instead, they enter into the contract through internet or software system, hence here the consent is always presumed.

• Certainty of terms- In the contract the terms must be certain, to avoid any difficulties between the contracting parties.

Types of E contracts: E contracts are classified into different types

• Shrink Wrap Contracts: Shrink wrap contracts are chiefly license agreements where the consumer is subjected to the terms and conditions of the contract. These are mostly related to the computer software which is distributed in CD's and ROM's. As soon as the customer opens the licensing software then it is considered that he accepts or gives his consent to the terms and conditions of the software Shrink wrap basically means plastic wrapping but to the software boxes i.e., the terms and conditions of the licensing agreement of the product.
• Click Wrap Contracts- Click wrap contracts are seen mostly in the online websites, where the websites provide the terms and conditions and there appears the "I Agree" which is very familiar to all of us and we most of the times just click that button without going to the terms and conditions which also contains the copyright, privacy, security policies too. These click wrap agreements are barely negotiable and the customer has to accept or reject those terms and conditions.
• Browser Wrap Contracts: These are found very commonly almost on all websites, where there is mentioned as "I Agree" or "OK" while reading or searching in any website. Almost all the websites contain terms and conditions, which the customer agrees or accepts those terms and conditions, and further he can get the access and download the concerned product which the website provides.⁸
• E mail contract: Any contract where the parties offer and give its acceptance and are discussed via email are called as e mail contracts.
• E commerce contracts- Any contract made in a website to buy or sell something are called as E commerce contracts. For example, buying clothes from Amazon etc,

Legal Validity of E contracts in India: Just like any other contract under Indian Contract Act, 1872 even E contracts are enforceable under the law. In India, we are facing a change form the traditional methods to the digitalization, hence the e contracts are also in the emergence. E contracts are same as any other contract and they are valid if it holds the essential of a contract as mentioned under the Indian Contract Act,1872. In the Indian Contract Act, 1872, it is nowhere mentioned that a contract must be only on paper or something like that, hence we can also consider E contracts to valid under the act. It is just that the traditional contracts show the consent of the parties and can be used for future references and this is followed as a custom in India.

• According to the section 10 of the Indian Contract Act,1872 which provides the pre requisites for an agreement to be a legally valid contract. Where it specifies over the essentials of a contract like offer, acceptance, consideration, free consent, competency etc. if an E contract possesses these essentials, then it is considered to be a valid contract and also enforceable under the law.
• Section 4 of the Information Technology Act, 2000 talks about the legal recognition of the electronic records, i.e., if any document or information valid is in the electronic form then it can be used for future references.
• Section 10A of the Information Technology (Amendment) Act, 2008 talks about the legality of e [Contracts created using electronic means are valid as long as the proposals, acceptances, and revocations of those proposals and acceptances are expressed in electronic form or through electronic records. A contract cannot be declared invalid or unenforceable solely because it was created using electronic means.].⁹
• Section 3 of the Evidence Act,1872 tells that the any document including the electronic records are allowed to be produced in the courts for inspection.
• Section 65B of the Evidence Act, 1872 tells that any information contained in the form of electronic means which are printed as a copy or a record then it is admissible to produce in the court without any proof of the original document.¹⁰

Advantages and Challenges faced by E contracts

• Advantages of E contracts: E contracts reduce the need of paper, which leads to the saving of time and money on the writing of the This reduction in the use of paper and the adoption of the electronic means is considered to be environmentally friendly also. E contracts have increased the efficiency of the contract management, by making all the parties to work seamlessly. E contracts provide strong safeguards to the sensitive data which is contained in the contract. The parties can access the e contracts at any place and time making the e contracts remotely accessible.
• Challenges faced by the E contracts: It becomes difficult to determine the jurisdiction in case of any breach in the E contracts, this is considered to be the biggest Since the parties do not meet physically, it makes it difficult to determine the jurisdiction. Due to some technical errors, there might be loss in the communication process in the e contracts, as the entire process is via internet. In E contracts, we con not specify the consent of the parties as they enter into the contract using the electronic means, hence we can only presume the consent of the parties here.¹¹

Conclusion

Technological advancements in the country have led to many changes in many fields, and one of which is evolution of contracts where the E-contracts are on emergence as the future of the contract management. Even though the E-contracts are emerging, the laws and legislations relating to validity of these contracts is still blurry in the Indian legal system. These blurred areas of the laws relating to the E-contracts must get addressed and must get more dynamic as the e commerce industry and the e contracts are growing. In India there are different provisions under different legislation that address about e contracts which brings the vagueness to the legislation relating to e-commerce and e-contracts, hence there must be an introduction of legislation regarding to e-commerce and e contracts covering all the aspects.

Footnotes

1. INDIAN CONTRACT ACT, 1872.sec.2(h)

2. INDIAN CONTRACT ACT, 1872.sec.2(e)

3. INDIAN CONTRACT ACT, 1872.sec.2(a)

4. INDIAN CONTRACT ACT, 1872.sec.3

5. INDIAN CONTRACT ACT, 1872.sec.2(d)

6. INDIAN CONTRACT ACT, 1872.sec.11

7. INDIAN CONTRACT ACT, 1872.sec.14

8. S. Gholap, Electronic Contracts in India: An Overview, International Journal of Research in Humanities, Arts and Literature, 3-4(2018)

9. Information technology (Amendment) Act, 2008, sec 10A, No. 10, Acts of Parliament, 2009.

10. Prime Legal, E-Contract: The contract in online mode, PRIME LEGAL (June 6, 2023) https://primelegal.in/2022/12/24/e-contract-the-contract-in-online-mode/

11. N L Gurjar, E-Contracts: The Legal Framework, Issues and Challenges, Volume 6, Issue 4, 3 (2018) https://www.jetir.org/papers/JETIREO06190.pdf.

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