Abstract:
The conclusion of a contract is the first substantive issue raised in electronic commerce. It must be seen to what extent the general rules governing contracts are applicable to this type of contract and to what extent the Electronic Commerce Law influences these rules. To this end, the validity of expressing will through data messages and how the agreement of two wills is formed are examined. In terms of the validity of expressing will, according to the principle of "consensualism of contracts," the contract is concluded based on mutual consent, and observing specific formalities or using specific terminology is not a condition for the validity of the agreement. Therefore, there is no obstacle in the electronic expression of will; however, a problem arises when, as an exception, observing specific formalities is a condition for the validity of the contract; for example, if "being in writing" or "being signed" is considered necessary for the declaration of will. Since a "data message" is not considered a writing or a signature, electronic commerce laws have been forced to treat data messages as a "signature" and "writing." Regarding the formation of agreement, the general rules governing contracts are applied to this type of contract to the extent that they are compatible with the nature of electronic contracts. Regarding offer, due to the special nature of electronic contracts, it is required that announcements included on websites be considered invitations to offer.
Machine summary:
Therefore, there is no obstacle in the electronic expression of will; however, a problem arises when, as an exception, compliance with specific formalities is a condition for the validity of the contract; for example, if "being in writing" or "being signed" is considered necessary for the declaration of will.
Article 191 of the Civil Code considers "the mere accompaniment of the contract with something that indicates an intention to create a legal relationship" sufficient for the realization of the contract, according to the laws and judicial practices in other countries.
The Electronic Commerce Law in our country lacks a similar explicit text; however, it can be inferred from Articles 6 and 7 of this law regarding the acceptance of a data message as a "writing" and electronic signature equivalent to a handwritten signature, and Article 12 of the law regarding the acceptance of electronic documents and evidence, that the validity and enforceability of electronic contracts in our legal system cannot be denied solely due to their form.
B - Formal Contracts Although the general rule is that there are no special forms or formalities for expressing will and realizing a contract, sometimes, based on the agreement of the parties or by operation of law, it is necessary that wills be manifested in a _______________________ 1- Clause 2 of Article 1 of the Principles of International Commercial Contracts, Article 1 of the Uniform Commercial Code, USA UNIDROIT, Art 1(2); Uniform Electronic Transactions Act, Sec 2 2 - UNCITRAL Model law on Electronic commerce.
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