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I INTRODUCTION
With the development of the Internet, electronic commerce is fast growing in the world. As an important part of electronic commerce, electronic contracts are drawing attentions of businesses. In fact, we experience electronic contract everyday. For instance, we pay money by credit cards. However, more and more business is being done on the Internet and it poses a challenge to the concept of traditional contracts. Are those contracts concluded on the Internet legally binding? How much influence will it have on the present contract law?
The significant difference between electronic contracts and the traditional paper-based contracts is that electronic contracts are paperless. This characteristic gives rise to a legal problem that how to guarantee an electronic contract to be reliable or enforceable which can be simply solved by means of the paper documents and physical signatures in the case of the paper-based contracts. Identification of the trading partners and authenticity and integrity of contracts are in question. Since the means of creation of a contract has changed, the essential questions, like when and where a contract is formed, become uncertain and controversial. In order to facilitate the use of the new technology and gain the great economic and social benefits from electronic commerce, the United Nations and governments in different jurisdictions have been doing their best to make laws to regulate e-commerce.
This paper is intended to discuss those new questions arising in the Internet age. Part II will address how electronic contracts are created by email and click-wrap. Part III will discuss how electronic contracts are evidenced when disputes arise. Part IV will discuss different circumstances of attribution of electronic data. Finally this paper is going to introduce current legislation on the legality of electronic contracts. Although borderlessness is another characteristic of the Internet and does have impacts on on-line contracting, it is still not as important as the paperless characteristic. This paper will not discuss this topic.
II CREATION OF ELECTRONIC CONTRACTS.
A Basic Forms of Electronic Contracts:
Andrew D. Murray thought there are two main methods of contracting on line. One is by email and the other is click-wrap method of contracting used on the World Wide Web. Andrew Hawker divided electronic contracts into three categories: Electronic Funds Transfer (EFT), Electronic Data Interchange (EDI) and email.
In my view, e-contracts can be divided into two groups according to the environment they are in. The first one is the Internet contracts. They are exposed to the open environment and there is no a pre-agreed agreement binding their future contractual activities. Email and click-wrap belong to this category. The other is the non-internet electronic contracts. They are formed in a closed environment. Usually a pre-agreed agreement should be signed and therefore the membership is granted. EFT and EDI are the typical forms.
Non-internet electronic contracts have been practiced for a long time and the pre-agreed agreements usually are “extremely detailed and explicit, very little litigation occurred in the area, making the structure they imposed a legal success.” In contrast, just because the contracting activities are exposed in an open environment and there is no a pre-agreed agreement between parties, the Internet contracts look unreliable and controversial. Therefore, the main challenge for electronic commerce is from the latter.
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