The advantages of the internet are many. To businesses, it is faster, cost-efficient, and convenient. But it has its disadvantages. For instance, fraud. In any case, the discussion in this article shall be limited to issues of the validity of contracts in digital spaces. Issues of offer and acceptance shall be discussed. In addition, we shall highlight what constitutes a valid e-contract. Note that the application of conventional validity of contracts persists in such instances. Most notable is that of offer and acceptance of terms and conditions as to the point the risk, liability, and obligation take forefront focus.
At this point, the conduct, action, and inaction of the parties are considered. A proper e-contract bears certain Clauses, being of the minimum threshold. First, it can disclose whether the transaction of that of sale of the product, license, partnership, or otherwise. It should be capable of clear determination of the rights and obligations of the agreement parties. What is on offer? Secondly, it should spell out the mode of payment for the product. Accordingly, it should point out to the refund policy in case the Offeree (Right seeker, otherwise the buyer needs to make such a request, and if at the same it is provided for by the agreement as a matter of policy the seller(Offeror i.e Rights holder.) It should also bear a disclaimer of liability on the reliance of the representation thereon for the terms and conditions. Parties must refer to legal counsel. Being an online event, the contract should indicate the way the information gathered by the seller shall be used. See data privacy.
From the above, principles of conventional agreements persist. Certainly, dispute resolution mechanisms must be saliently included. See ADR. It is also important to establish the point that the Rights and Obligations are presumed to be passed on to the offeror and offeree as well as vice versa. It is possible to include the mode in which such a dispute may follow. Case law remains relevant to demonstrate that courts do not anchor on conventional contract principles whilst applying the validity of e-Contracts.
The terms of the contract are usually framed as a click-on agreement or shrink -warp agreement such as those seen on social media applications. In Kenya, the format of agreement/ contracts requires that the agreement can be either oral or written. However, it insists that some contracts cannot be valid save for those in written format.
The issues therein are then the instance that the liability arises. For instance, to include the terms and conditions in a manner in which the offeree cannot reasonably access them, or in a way that they are not readily understood would result in liability on the offerors part. It is on this basis that the Data Protection Laws impress upon [consent]. That the offeree must give express and informed consent before the data may be obtained by the Offeror for example. See Data Privacy. It becomes clear as to the extent to which the law requires compliance on the offerors’ part. Hence an indicator of consent is forced upon the offeror in the form of action from the offeree.
Even then are other salient features of vitiating a contract. The question of electronic signature remains a contentious subject. Although electronic signatures are recognized under the Laws, the issue around them is yet to be properly established in practice.
This article is intended for general knowledge only. For legal advice on this, please contact us through info@atandiadvocates.africa
