Electronic Contract Proof
Proof (evidence) is one of the most important issues that hinders the progress of electronic commerce due to the differences between electronic contracts and traditional contracts, which are based on written documents and traditional signatures that electronic commerce does not recognize.
These traditional tools are not compatible with the nature of electronic commerce, which is based on the exchange of offer and acceptance in an electronic space. This is done through non-paper-based supports available within or outside communication devices, and these are signed by the sender of the message using encryption or coding methods.
In line with the information revolution, electronic commerce, and the digital world—and their impact on economic power—it became necessary for legislation to regulate electronic contracts legally in order to keep pace with technological advancement in negotiation, contract conclusion, and to provide legal protection for them.
The European Parliament in 2000 recommended and urged rapid response to this technological revolution due to its significant impact on the volume of trade exchange.
In encouragement of this direction, the European Parliament rejected the argument of relying on the electronic mechanism through which the contract is concluded, because the formation of a contract is simply the meeting of offer and acceptance with the existence of a conscious will intended to produce legal effects. Therefore, the formation of the contract does not depend on the method of its conclusion.
Conditions of Writing in Electronic Documents:
- Consent is a fundamental principle in contract formation, as a contract is concluded once two free wills meet in offer and acceptance, unless the law requires a specific form.
- Traditional laws required writing as a condition of proof, and it is considered the highest means of evidence.
- Article 28/1 of the Jordanian Evidence Law requires writing for any non-commercial debt exceeding 100 dinars or an unspecified amount.
- The same approach exists in Egyptian law (500 pounds) and U.S. law (500 dollars).
- However, in electronic commerce, the situation is different due to its nature, which relies on electronic supports used to record contracts for evidentiary purposes.
Concept of Writing:
- The legislator left the definition of “writing” to the judiciary, which distinguished between private and official documents.
- This concept confirms reliance on paper-based written documents.
- Proof is the primary objective of writing, for which the form of the document is determined.
What distinguishes electronic contracting is that it takes place over distances by entering data in digital form, stored on magnetic tapes or disks, either permanently or temporarily in computer databases, allowing access to modify or delete it.
Compatibility of Writing with Digital Form:
The concept of writing does not conflict with digital writing used in electronic commerce, as writing does not require a specific physical medium.
The essential requirement is that the medium must be capable of transmitting written symbols and preserving what has been recorded, which is fulfilled by digital writing. Through it, contractual wills are exchanged and can be used as evidence.
This approach has been adopted by several international instruments, including:
- The Convention on the International Sale of Goods
- The New York Convention on prescription (limitation periods)
- The International Organization for Standardization (ISO)
- The UNCITRAL Model Law on Electronic Commerce
Definition of Data:
Data refers to information that is created, sent, received, or stored by electronic, optical, or similar means, including electronic data interchange, email, telegraph, telex, or copying systems.