Consent in an electronic contract
- A contract is concluded once the parties agree on its essential terms.
- It is formed when offer (offer/“ījāb”) meets acceptance, unless the law requires a specific formal requirement for its formation.
- Article 90 of the Civil Code states:
“A contract is concluded بمجرد ارتباط الإيجاب بالقبول (as soon as the offer is linked with acceptance), subject to what the law provides regarding special conditions for contract formation.” - Acceptance over the internet has taken a different form, as it is carried out through a data message transmitted via electronic channels (as confirmed by Article 11(1) of the UNCITRAL Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law).
- Expressions of will are exchanged through data messages in both international and domestic commercial transactions.
- Electronic communication technologies have been equated with paper documents in terms of contract formation and proof.
Offer in Electronic Contracts (E-Offer)
- An offer is a firm and complete proposal to conclude a contract under specified conditions, directed by a person to another specific person, to unspecified persons, or to the public. It must be express and may take the form of speech, writing, or any conduct that clearly indicates intention to contract.
- It must be firm and reflect a determined final intention to conclude the contract if accepted.
- A mere invitation to negotiate is not considered an offer.
- An advertisement is not considered an offer even if it contains all essential elements of the contract.
- The offer must be specific and complete, including all essential elements such as subject matter and price, and it must reach the knowledge of the offeree.
- Therefore, this definition applies to offers made within electronic commerce.
Electronic Offer:
“Any remote communication containing all necessary elements so that the recipient can directly accept the contract, excluding advertisements.”
Principle of Disclosure (Circumspection / Consumer Transparency)
This refers to the legal obligations imposed on contracting parties to identify themselves and for the offeror to clearly state the terms and conditions of contract performance.
This principle was confirmed by the European Consumer Protection Directives (2000), which required the offeror to provide:
- Name and postal address
- Characteristics of the goods or services
- Price specification
- Any additional costs such as shipping fees
- The consumer’s right to return the product within 7 days without justification
- Duration of the offer
- A system for receiving complaints
The Canadian legislator also adopted the same principle, requiring clarity in offers, explanation of rights and obligations of both parties, specification of price and benefits, methods of payment, and granting the buyer the right to terminate the contract within a specified period agreed upon by the parties.
All of this aims to increase trust, credibility, and protection in electronic transactions, especially since most of them are international in nature.
For example, the product may be displayed as a 3D image.