Assignment First


合同可以采取任何形式,因此电子合同也被视为合同(Allen & Overy, 2016)。电子合同本身也可以有许多不同的形式。与传统的契约相比,这里可能会出现冲突。在传统合同书面要约和承诺可能会好,或者其他语言,然而在电子合同中写合同指定的形式可能是印刷,打字,光刻技术也可能是一个摄影签名,象征,一些可见的形式等。(简而言之,2016)。

在考虑电子签名的构成时,还有一些潜在的问题。是否应该仅根据案例上下文将其视为接受,或者电子签名是否表示完全接受。在良好的挑战者Navegante SA v Metalexportimport SA(2004)的控股类型名称的法院被认为在电传中可以得出的结论是一个签名确认的人接受并签署。然而,法院也得出结论,这并不适用于所有情况,在大多数情况下,对于正式合同,除了合同上的打印名称外,合同还需要有一个适当的签名(Wraight, 2008)。

在什么构成基于电子邮件的接受方面存在着冲突。电子邮件一旦离开发件人的发件箱,发件人就不能再检索它。这种情况类似于一般的邮政规则。但是,考虑一下邮件现在位于收件人电子邮件框中的情况。既然邮件已经准备好让收件人阅读,那么它应该被视为合同已经签订,还是收件人实际上已经阅读了邮件,或者在收件人阅读邮件之后发送的read收据是否被视为合同已经签署。“邮政验收规则”在亚当斯的情况下引入诉Lindsell,并通过在传统承包之后不被接受在其他情况下,电子通讯出现如Entores诉英里远东集团[1955]2 QB 327 v和Brinkibon Stahag斯塔尔1983。除了法律问题之外,实际问题也被引入到合同中,因为提供合同的人和接受合同的人都必须注意合同如何根据其电子性质进行变更的细节。


A contract can take any number of forms and accordingly the electronic contract is also considered as a contract (Allen & Overy, 2016). The electronic contract by itself could again be of many different forms. Here conflicts might arise as compared to traditional contracting. In traditional contracting a written offer and acceptance might be good, or something verbal, however in the case of electronic contracting the writing as specified for contracts might be in the form of printing, typing, lithography or it might be a photographic signature, symbol, some visible form etc. (In Brief, 2016).
There are also potential issues in considering what an electronic signature constitutes. Should it be taken as an acceptance based on the case context only or does an electronic signature indicate full acceptance. In the case of the Good Challenger Navegante SA v Metalexportimport SA (2004) it was the holding of the court that a typed name as was seen at the end of a telex in the case could be concluded to be a signature affirming the person had accepted and signed it. However, the court also concluded that this would not be applicable for all cases and that in most cases for a formal contract it will be necessary for the contract to also have a proper signature in addition to the typed name on the contract (Wraight, 2008).
There are conflicts in the context of what constitutes acceptance based on electronic mails. An email once it departs the sender’s outbox can no longer be retrieved by the sender. So this situation is similar to the normal postal rule. However, consider the case of when the mail is now in the recipient email box. Now the since the mail is ready for the recipient to read, should it be taken as a contract is concluded or should the recipient actually read the mail, or does the read receipt that is sent after the recipient reads the mail to be taken as contract conclusion. The “postal acceptance rule” which was introduced in the case of Adams v. Lindsell, and followed through in traditional contracting was not accepted in other cases where electronic communication came into existence such as that of Entores v. Miles Far East Corp [1955] 2 QB 327 and Brinkibon Ltd v Stahag Stahl 1983. In addition to the legal issues practical issues are also introduced into contracting, as the person offering the contract and the person accepting the contract both have to be mindful of details on how the contracting could change based on its electronic nature.