Volume 21, No. 1, 2024
Depict Expressions Of Will In The Electronic Contract
HudhaIfa MohsIn Saeed Dakhakhni , Naguez Nejiba , ENAS ABBAS ABED
Abstract
Given the distinctive features of electronic contracts that differentiate them from traditional contracts, the issue of mutual assent (offer and acceptance) in electronic contracts also possesses its own unique characteristics. These differ from what is found in other contracts due to the nature of the means through which they occur. The act of acceptance online is not fundamentally different from traditional acceptance, except for the medium used. While online acceptance is no more than traditional acceptance, the difference lies in the medium, as it is not characterized differently than traditional means of acceptance in a physical gathering between an offeror and an offeree, or through immediate means such as telephone, fax, telex, or telegraph. However, it encompasses all these means, making online acceptance any medium similar to these traditional methods (Ababneh, 2012). Whereas some legislations have stipulated provisions requiring the presence of such acceptance in electronically formed contracts, the first paragraph of Article 11 of the United Nations Model Law on Electronic Commerce (UNCITRAL), issued on December 16, 1985, provides: "In the context of contract formation, unless otherwise agreed by the parties, an offer, or the acceptance of an offer, may be expressed by means of data messages. Where a data message is used in the formation of a contract, such contract shall not be denied validity or enforceability on the sole ground that a data message was used for that purpose." Additionally, paragraph (2/3) of its Model Law on Electronic Commerce includes the following: "A message is an offer if it is sent to one person, or to several persons identified or identifiable so long as they are identified with sufficient certainty and indicates the sender's intention to be bound in case of acceptance. A message available electronically to the public in general is not an offer unless it is so indicated."
Pages: 64-85
Keywords: The use of the digital environment has had a profound impact on the entire contracting process, affecting various provisions and creating several challenges due to the uniqueness of this type of contracts.