3/24/2020 Emails and contracts - communication and validity
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Emails and contracts - communication and validity
There always have been a question on the validity of the communications and contracts formed by the
medium of email. As I choose this topic for my research so I will try to throw light on this topic and try to
know the legal perspective of the topic. I will discuss about communications and formed contacts
including reference cases
Author Name: ashank40
There always have been a question on the validity of the
communications and contracts formed by the medium of email. As I
choose this topic for my research so I will try to throw light on this
topic and try to know the legal perspective of the topic. I will discuss
about communications and formed contacts including reference
cases
Emails and contracts - communication and validity
Many people consider email to be an informal form of communication. As a result,
offers, counter-offers and terms of proposed agreements are frequently exchanged
via email with the hope and expectation that they are for negotiation purposes only.
As it is clear that the chosen topic revolves not only around Indian Contracts Act 1872
but also Information Technology Act 2000. So therefore question of validity is to be
also considered in Electronic Contract as email falls under this category.
Though the Sec 10A of the Information Technology Act states the validity of electronic
contracts but still digging further is required. The Sec 10A of IT Act provides the
legislative authority to electronic contract. It was inserted through an amendment in
2008.
It says-
“Where in a contract formation, the communication of proposals, the acceptance of
proposals, the revocation of proposals and acceptances, as the case may be, are
expressed in electronic form or by means of an electronic record, such contract shall
not be deemed to be unenforceable solely on the ground that such electronic form or
means was used for that purpose.”
In business, e-mail are increasingly becoming the methods used to negotiate and
agree on the terms of a transaction. For online businesses, these are virtually the only Top
methods of communicating and carrying out transactions.
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3/24/2020 Emails and contracts - communication and validity
On broad a valid contract requires four elements-
1. Agreement – To have an enforceable contract, there must be an agreement
between the parties. This requires an offer and an acceptance of that offer.
2. Consideration – The agreement must be supported by something of legal value
given in exchange for the promise.
3. Contractual capacity – The parties to a contract must be able to legally enter into a
contract. For example, minors are not legally capable of entering into a contract, so
they lack contractual capacity.
4. Lawful object – The goal of a contract must be lawful. Contracts to commit a crime
or contracts against public policy are void.
The question for these businesses is, “Are electronic contracts legally enforceable?”
Assuming all of the elements to establish a traditional contract are present, an email
or web contract can be a valid and enforceable agreement.
The courts have not clearly decided whether an acceptance by e-mail becomes valid
when sent or when received. Instantaneous forms of communication such as faxes
and telex communications do not fall under the mailbox rule, so acceptance by these
methods is only valid when received.
Contracts which expressly permit the giving of notices by email typically deem
the notice to have been received at:
(a) The time the email is sent by the sender;
(b) A specific period after the time it is sent by the sender; or
(c) The time shown on a "delivery receipt" received by the sender.
There are potential issues with all of these methods and no easy solutions.
For option (a), any delay between when the email is sent and when it is received is not
accounted for, so what happens when the email is not received the instant it is sent?
For option (b), what if the email is received after the specified period or not received
at all? In both cases, it would be unfair on the recipient to deem the email to have
been received before the recipient could have received it.
Again the big issue raised is also that do these emails result in binding contracts. So to
sum up, a binding contract would take place once the acceptor dispatches the
electronic record such that it enters a computer resource outside the control of the
acceptor.
However, the above proposition may not hold well in all types of electronic contracts.
The Supreme Court in Bhagwandas v. Girdharlal following the English decision in
Entores Ltd. v. Miles Far East Corpn. has held that Section 4 of the Contract Act is only
applicable in cases of non-instantaneous forms of communication and would not
apply when instantaneous forms of communication are used. The Court observed
that the draftsman of the Contract Act did not contemplate the use of instantaneous
means of communications. Hence, where proposal and acceptance are made by
instantaneous means of communications like the telephone, telex etc., and the postal
rule does not apply and the contract is made where the acceptance is received.
Top
Therefore, the default rules elucidated above may have a relevance only in non-
instantaneous forms of contract formation.
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3/24/2020 Emails and contracts - communication and validity
sta ta eous o s o co t act o at o .
Though e-mail communication has some of the trappings of instantaneous
communication, nevertheless, it is a fragmented process involving many stages. The
e-mail message is split into various packets and sent via different routes. Further,
unlike in instantaneous forms of communication, the sender does not know if the
transmission of the e-mail is successful, for even though he gets a delivery receipt, it
only signals delivery to the mailbox and does not indicate that the other party has the
knowledge of the receipt. Thus, e-mail messages would come under the category of
non-instantaneous form of communication. The default rules enunciated above
would apply to e-mail contracts.
End-Notes
[1] Sec 10A of IT Act
[2] Section 10, Indian Contracts act 1972
[3] AIR 1966 SC 543
[4] (1955) 2 QBD 327 : (1955) 2 All ER 493
ISBN No: 978-81-928510-1-3
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Author Bio: 4th Year Law student, GD Goenka University
Email: yadavashank@gmail.com Website: http://www.legalserviceindia.com
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359 Comments Sort by Oldest
Add a comment...
Kartik Bagchi
The Union Cabinet is all poised to table an amendment to the marriage laws, which, in the event of a
divorce, would give the wife an equal share of not only the property acquired by the husband during or
before the marriage, but also his inherited or inheritable property. This proposed amendment is already
creating a furore.
Like · Reply · 19 · 6y
Mallikarjuna Sharma
That is quite insane proposal. Self-acquired property can be disposed of at will - is the established
law and this contradicts it. Even if elements of social or public interest are there, those should not
totally drown the established law. The maintenance provisions should be made more stringent and
adequate by reform but not such divesting of property for a song.
Like · Reply · 11 · 2y
Veeraswami Panjan
Mallikarjuna Sharma It is not divesting of property for a song Sharmaji, when two join in wedlock,
they flurish and family become established. This society was men dominated, is being men
dominated and I feel bad and continue to be men dominated. Hence, to safeguard the interest of
women folk who have to face so many illtreatment are protected through this historic measure.
Why not we support.
Like · Reply · 6 · 1y Top
Lakshmirajyam Jonnalagadda
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3/24/2020 Emails and contracts - communication and validity
a s ajya Jo a agadda
Execute documents of all the property in the name of your beloved wife and then you will face the
music. men are the strong enemeies of the men and idiotically they see cruelity in men and the
regular and continuous female mess in houses which lead to the disastrous state of affairs for the
men folk and it has become a regular irony and more than 90% of women who seek divorce recite
the stupid stanza that their live is full of thorns and many impedements espeically after marriage as
if their life at their parental houses ran on golden carpet. Present day should be taken into
consideration to ascertain present day oproblems and the days of great great grand fathers or the
inception times of this Kali Yuga.
Like · Reply · 11 · 1y
Show 5 more replies in this thread
Tukaram Gaude
hi
Like · Reply · 5 · 6y
Brijesh Mithaulia
Jenny Kay : Thank you Rose Sarah. I am Brijesh Kumar Mithaulia from India. I am in similar
situation today, only genders have changed. I have contacted father Dr Jude and has asked me for
some details. Will send him shortly.
Like · Reply · 35w
Brijesh Mithaulia
Its such a coincidence that I found your blog.
Like · Reply · 2 · 35w
Angel Vijayvidya
Can anyone help me.i am suffering from dowry harassment.i am mentally have depressed from my
husband.
Like · Reply · 3 · 6y
Nilesh Pawar
Go to Police Station and file Section 498A of IPC
if getting Physical harrasment you can file Domestice Violence in the appropriate Court and get
Protection from Husand & relatives of husband
Like · Reply · 14 · 3y
Abhinav Vishnu
What's ur actual problem, u r not mentioned facts here
Like · Reply · 3 · 2y
Abhinav Vishnu
Is it belongs to dowry ,or, cruelty,or , harrassment, domestic violence,or ,adultry,or, desertion, what
is ur actual problem
Like · Reply · 3 · 2y
Show 10 more replies in this thread
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3/24/2020 Emails and contracts - communication and validity
Anita Rao
India being democratic country and having protective laws for women , its high time to have special courts
for women to try cases exclusively women cases only...........
Like · Reply · 23 · 6y
Sharon Chatterjee
woman courts is no solution it fact we need capable judges who are not appointed politically
Like · Reply · 38 · 4y
Akku Singh
Sharon Chatterjee Right
Like · Reply · 6 · 1y
Muneeta Dhiman
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