E-Contract laws with contractual formation &

Challenges

Abstract

E contracts legislation & its comparative study & critical

approach is very important study for E-commerce review. The
main object of research paper to focus on exact fact of e-
contract .it is not paper based contract but it is electronic
contract. Most of the Web-wrap agreements, Ship-wrap
agreements are known as electronic contract. According to
Indian Contract Act 1872, Section 10 laid down valid
elements of that.

In reality as per observation we come across lack of

provision in formation of e-contract. Information Technology
Act, Cyber law, Indian contract Act, Indian Evidence Act not
wholly justified to electronic contract. Todays computerized
generation need more protection. Our Indian judiciary in
many landmark judgments rejected legality of computer.
Then its very difficult to define our even justified validity of
electronic contract.

The conventional law relating to address all the issues

that arises in e-contracts. It solves some of the peculiar
issues that arise in the formation & authentication of e-
contracts.

We often come across these e-contracts in our

day to day life but are unaware of the legal complexities &
challenges connected to it.

Key words: - E-commerce, Web-wrap agreements, Ship-wrap

agreements Information Technology Act,
conventional law.

______________________________________________________________________
_________________
Name- Prof.N.P.Ghadge (BSL,LLM.DLL,DCL,PhD Regd.)
Designation- MBA Faculty,Asst.Training & Placement officer.
Office Add.- YSPMS,YTC,Satara,Maharashtra.
Home Add.- 5,Aashirwad,A/P-Khindwadi,T/D.-Satara,Maharashtra.
E-mail add - 1) [email protected],
2) [email protected]
Mo.No. 9881543555

E-Contract laws with contractual formation &

Challenges

Researcher has explained that, India's Information Technology Act (ITA)

recognizes the legal validity of E-documents, E-signatures and E-contracts, and
also promotes E-government. E-documents are not allowed in wills, trusts, and
sales of real property, negotiable instruments and powers-of-attorney. An E-
document may be used to satisfy a statutory requirement of: writing;
authentication; retention; publication; and governmental filing, issuance or
payment. A digital signature complies with a statutory requirement for a
handwritten signature to be affixed on paper. The ITA includes E-contract rules
relating to: attribution, acknowledgement of receipt, and time and place of
transmission and reception of an electronic message. Rules are provided for the
regulation of Certification Authorities (CA) and third parties whose duty is to
vouch for the authenticity and integrity of an electronic message that has been
signed with a digital signature. Those rules are implemented by the Controller.
India has adopted a compulsory system of CA licensing; no party may offer
certification services without a license. A CA is mandated to: publicly display its
license; issue certificates to successful applicants; and manage outstanding
certificates by keeping the information in them current, and suspending or
revoking them if they contain inaccuracies. A CA's license may be suspended or
revoked for good cause shown. Subscribers are responsible for ensuring that all
information given to the CA is accurate and that all information contained in the
certificate is correct. Ordinarily, network service providers have limited liability.
The ITA includes civil and criminal offenses and related penalties. The Controller
appoints adjudicating officers to hear both civil and criminal cases relating to the
ITA and to render decisions accordingly. Appeal may be taken to the Cyber
Regulations Appellate Tribunal and eventually to the High Court. The federal
 government of India and the Controller are empowered
to issue regulations necessary for implementation of
the ITA.
Researcher has analyzed that, today with the
recent advancement in the areas of computer
technology; telecommunications technology, software
and information technology have resulted in changing the standard of living of
people in an unimaginable way. The communication is no more restricted due to
the constraints of geography and time. Information is transmitted and received
widely and more rapidly than ever before. And this is where the electronic
commerce offers the flexibility to business environment in terms of place, time,
space, distance, and payment. This e-commerce is associated with the buying
and selling of information, products and services via computer networks. It is a
means of transacting business electronically, usually, over the Internet. It is the
tool that leads to enterprise integration. With the growth of e-commerce, there
is a rapid advancement in the use of e-contracts. But deployment of electronic
contracts poses a lot of challenges at three levels, namely conceptual, logical
and implementation. In our article we have discussed the scope, nature and
legality and various other issues related to e-contracts.

It is quite unlikely for most computer literate people in India that a day
has passed without him or her coming across a point while dealing with
computers where he or she did not had to manifest his or her assent to some
terms .In case of surfing the Internet, it is generally done by clicking on some
icon like "I Agree" and in cases of installing a software, assent is generally shown
by the conduct of tearing the CD package and using it. Most of us do it as just
another "necessary evil" to get our job done. However miniscule it may seem to
a lay man, these actions of ours is of immense importance because it leads to a
valid and enforceable contract and those terms, that we hardly even bother to
read, can be strictly enforced against us.

Definition of E-Contract:

According to Sir William Anson: A contract is a legally binding

agreement between two or more persons by which rights are acquired by one or
more acts or forbearance on the part of the other or others. E-contract is any
kind of contract formed in the course of e-commerce by the interaction of two or
more individuals using electronic means, such as e-mail, the interaction of an
individual with an electronic agent, such as a computer program, or the
interaction of at least two electronic agents that are programmed to recognize
the existence of a contract. Traditional contract Principles and remedies also
apply to e-contracts. This is also known as electronic contract. E-Contract is an
aid to drafting and negotiating successful contracts for consumer and business
e-commerce and related services. It is designed to assist people in formulating
and implementing commercial contracts policies within e-businesses. It contains
model contracts for the sale of products and supply of digital products and
services to both consumers and businesses.

Researcher has defined that an e-contract is a contract

modeled, executed and enacted by a software system. Computer programs are
used to automate business processes that govern e-contracts. E-contracts can
be mapped to inter-related programs, which have to be specified carefully to
satisfy the contract requirements. These programs do not have the capabilities
to handle complex relationships between parties to an e-contract E-contracts are
conceptually very similar to traditional (paper based) commercial contracts.
Vendors present their products, prices and terms to prospective buyers. Buyers
consider their options, negotiate prices and terms (where possible), place orders
and make payments. Then, the vendors deliver the purchased products.
Nevertheless, because of the ways in which it differs from traditional commerce,
electronic commerce raises some new and interesting technical and legal
challenges.

Basic forms of E-Contract

Generally the basic forms of "E-Contracts" that a person comes
across if he is computer savvy are:

The Click-wrap or Web-wrap Agreements.

The Shrink-wrap Agreements.

The Electronic Data Interchange or (EDI).

Web-click contracts: The case of web-click or click-wrap contracts is

different as such contracts are formed instantaneously: The main difference
between click-wrap contracts and e-mail is that communications between web
clients and servers, unlike e-mails is instantaneous. The best way to imagine the
transfer of data between computers is to treat it as a telephone conversation,
just one between computers rather than individuals. If either party goes offline
at any point, the other will be aware of the change in status. This is because all
communications between clients and servers have an inbuilt self-checking
mechanism called a check sum.

Click-wrap or Web-wrap Agreements: These are the agreements

which we generally come across while surfing internet such as I AGREE to the
terms or I DISAGREE to the above conditions. Now let us see the peculiarities
of these contracts and the specific industries that put it to use. First and foremost
are the Click-wrap agreements. Click-wrap agreements are those whereby a
party after going through the terms and conditions provided in the website or
program has to typically indicate his assent to the same, by way of clicking on
an "I Agree" icon or decline the same by clicking "I Disagree". These type of
contracts are extensively used on the Internet, whether it be granting of a
permission to access a site or downloading of a software or selling something by
way of a website.
The Shrink-wrap Agreements: These are the agreements generally
contains the CD Rom of software. The terms and conditions are printed on the
cover of CD Rom. Sometimes additional terms are imposed when in such
licenses appear on the screen when the CD is downloaded to the computer. The
user has right to return if the new terms and conditions are not to his liking. The
validity of the Shrink-wrap agreements first came up for consideration in the
famous case of ProCd, Inc v. Zeidenburg17 where it was held "that the very fact
that purchaser after reading the terms of the license featured outside the wrap
license opens the cover coupled with the fact that he accepts the whole terms of
the license that appears on the screen by a key stroke, constitutes.
Further, communication of an offer or acceptance in the web-click mode is
complete when the addressee is in receipt of the electronic record as defined in
Section 13(2) of the IT Act.

Electronic Data Interchange or (EDI):

These contracts used in trade transactions which enables the transfer of data
from one computer to another in such a way that each transaction in the trading
cycle (for example, commencing from the receipt of an order from an overseas
buyer, through the preparation and lodgment of export and other official
documents, leading eventually to the shipment of the goods) can be processed
with virtually no paperwork. Here unlike the other two there is exchange of
information and completion of contracts between two computers and not an
individual and a computer.
Social Media & Indian Cyber Law

Researcher has find out social media & Indian cyber law approach that, In India,
there has been a lot of controversy over the last few months over Section 66A of
the Indian Cyber law being the amended Indian Information Technology Act,
2000 on different occasions. In Professor Amices Mahapatra case, Professor
Amices Mahapatra was arrested on account of forwarding of caricature/cartoons
on Face book. Further, Ravi Srinivasan Twitter case showed how on a complaint,
a persons tweets could be brought within the ambit of Section 66A of the
amended Indian Information Technology Act, 2000. In K V Rao case, two men K.V.
Rao and Mayank from Mumbai were arrested for allegedly posting offensive
comments against some leaders on their Face book group.
In India, there has been a lot of controversy over the last few months
over Section 66A of the Indian Cyber law being the amended Indian Information
Technology Act, 2000 on different occasions. In Professor Amices Mahapatra
case, Professor Amices Mahapatra was arrested on account of forwarding of
caricature/cartoons on Face book. Further, Ravi Srinivasan Twitter case showed
how on a complaint, a persons tweets could be brought within the ambit of
Section 66A of the amended Indian Information Technology Act, 2000.

Challenges in formation of E contract

E-contracts are well suited to facilitate the re-engineering of business

processes occurring at many firms involving a composite of technologies,
processes, and business strategies that aids the instant exchange of information.
The e-contracts have their own merits and demerits. On the one hand they
reduce costs, saves time, fasten customer response and improve service quality
by reducing paper work, thus increasing automation. With this, E-commerce is
expected to improve the productivity and competitiveness of participating
businesses by providing unprecedented access to an on-line global market place
with millions of customers and thousands of products and services. On the other
hand, since in electronic contract, the proposal focuses not on humans who
make decisions on specific transactions, but on how risk should be structured in
an automated environment. Therefore the object is to create default rules for
attributing a message to a party so as to avoid any fraud and discrepancy in the
contract.

Formalities and Interpretation

Given that the liberalized concept of mutual assent may support the finding of an
electronic contract, the next hurdle to overcome is determining whether an
electronic contract is otherwise enforceable and, if so, how to determine its legal
effect. Principally, these concerns focus upon compliance with contract formalities
and rules of interpretation. Absent a coherent framework for enforcement of
electronic agreements, predictability and commercial practicality suffer. Although
general contract law and the U.C.C. have developed bright-line rules to address
these issues the electronic medium undercuts several basic assumptions that
structure established rules. Whether a string of electronic bits stored in the memory
cache of a laptop satisfies the writing requirement of the Statute of Frauds - or
whether instantaneous messaging obviates the mailbox rule for delivery of
acceptances - is issues that infect the core purpose of traditional contract
formalities. While parties may assent to create electronic contracts, the enforcement
and interpretation of these agreements as valid contracts is an equally vital concern
for business.
The following discussion centers upon several key concepts, including the Statute of
Frauds, delivery of communications, the parol evidence rule, and consideration.
Following the initial decision to adapt existing contract law to the electronic
medium, the authors' development of issues traces a path that attempts to retain
the traditional concepts, yielding to innovation only when technology has rendered
these concepts obsolete.

Statute of Frauds

A basic rule of contract law is that certain types of agreements must be in

writing before they may be enfor Absent a writing and the signature of the
party charged, a court will refuse to enforce what may be an otherwise valid
agreement that fits one of the six categories of contracts within the typical
American Statute of Frauds.Employed over the years to guard against fraud
and discourage perjury, the Statute of Frauds continues to require written
contract in certain instances to "promote[] certainty and deliberation . . . while
limiting memory problems when the contract terms are questioned in court."
Although a long accepted tenet of contract law, the Statute of Frauds has not
escaped exceptions and relaxation. For example, U.C.C. 2-201 has liberalized
the rule to require only a writing that contains a quantity term for the sale of
goods. Moreover, no [*247] writing is required unless the contract price is $
500 or more. So long as the writing provides a sufficient basis to determine
that it is part of an actual transaction, the Statute of Frauds is satisfied.
Further, the writing requirement may become inapplicable through part
performance and where promissory estoppel may defeat a Statute of Frauds
defense to yield a more equitable result.
 Electronic contracts provide an opportunity to revisit the Statute of Frauds to
determine its modern vitality. As previously mentioned, the rule requires a
written memorial and the signature of the party charged- simple concepts in a
paper-and-ink world that are obviously different in a paperless electronic
universe. Thus, the question is whether the Statute of Frauds can apply to
electronic contracts whose components simply do not fit the traditional
interpretations of "writing" and "signature" that the Statute originally intended.
Although several modern commentators view continued use of the Statute of
Frauds as an outmoded anachronism the Statute can retain its place and, the
author's believe, in light of its purposes, should remain an integral part of
contract law in the electronic world. To understand its continued importance,
the concepts of "writing" and "signature" must be developed to fit the

Internet email is an electronic system

Internet email is an electronic system through which messages are transported
between systems on the behalf of their users. It is a faithful system in that the
mail server delivers a message to the receipt that it is directed to. This level of
confidence becomes a problem when anyone in the world can send an email to
anyone Individuals and organizations that send unsolicited email (spammers) are
taking vantage of this relying system.

There are already many research is going on for various email clients to control the spams by
using filters. In doing so we have examined the definition of spam, the users requirements and the
role of the spam filter as according to our need and specific requirements. There are comparisons are
not easy, as benchmarks, measures, and methods for evaluating spam filters are still evolving. We
survey these efforts, and their results. In spite of recent development in evaluation methodology,
many uncertainties still remain which effect on filtering spam techniques and check the validity of
spam filter evaluation techniques. Here we are going to advocate several prevalent filtering
techniques and propose our work to acknowledge them. So the next time you uninterestingly click on
an "I agree" button without even caring to see the terms or hurriedly tear the wrap of software CD
being least interested about the terms typed on it "Think Twice"! They are all are valid contracts and
you could be made liable for the terms and conditions laid down there.

Jurisdiction

Landmark Cases Decided by the Adjucation Office U/Chapt. IX

of the IT Act
 (I) Shri.Thomas Raju Vs. The Branch Manager, ICICI Bank, Anna Nagar Branch,
Chennai Case decided by the Adjudicating officer, Government of Tamilnadu.
Civil Jurisdiction. Petition No. 3 of 2011 Dated 16th May, 2011 Petitioner, an
employee of a Chennai based IT company, suffered a loss of Rs. 1, 62,800/- as a
result of the phishing attack. The said amount was supposed to have been
transferred on the account of another customer of ICICI Bank. Petitioner claimed
that he had suffered a wrongful loss due to unauthorized access to his savings
account at the Anna Nagar branch of ICICI Bank.

Conclusion
There are already many research is going on for various email clients to control
the spams by using filters. In doing so we have examined the definition of spam, the
users requirements and the role of the spam filter as according to our need and
specific requirements. There are comparisons are not easy, as benchmarks,
measures, and methods for evaluating spam filters are still evolving. We survey
these efforts, and their results.

In spite of recent development in evaluation methodology, many

uncertainties still remain which effect on filtering spam techniques and check the
validity of spam filter evaluation techniques. Here we are going to advocate several
prevalent filtering techniques and propose our work to acknowledge them. So the
next time you uninterestingly click on an "I agree" button without even caring to see
the terms or hurriedly tear the wrap of software CD being least interested about the
terms typed on it "Think Twice"! They are all are valid contracts and you could be
made liable for the terms and conditions laid down there.

Reference

1. Bakshi P.M & Suri R.K, Cyber and E-commerce Laws, Bharat Publishing House, edn 1, 2002.
2. Ryder D.Rodney, Guide to Cyber Laws, Wadhwa & Co. Publishers, edn.1, 2001.
3. www.legalserviceindia.com
4. www.asianlaws.org