E Contract

What is a contract?
According to Section 2(h) of the Contract Act,1872 ''an agreement enforceable by law is
a contract''. Also, as per Section 2 (j) of the Act ''a contract which ceases to be
enforceable by law becomes void when it ceases to be enforceable''. A contract could
be written formally or informally or could be entirely verbal or in writing.
Section 10 of the Act to considered in order to constitute a valid contract are as

follows:--
⦁ Offer and acceptance is described under Section 2(a) and (b) respectively,
⦁ Lawful consideration is explained under Section 23 and Section 25,
⦁ Condition to be competent for parties is stated under Section 11, and
⦁ Section 14 of the Act deals with free consent and factors that would deem a
contract invalid.
E-contract is any kind of contract formed in the course of e-commerce by the
interaction of two or more individuals using electronic means, such as e-mail, the
interaction of an individual with an electronic agent, such as a computer program, or
the interaction of at least two electronic agents that are programmed to recognize the
existence of a contract.
Traditional contract principles and remedies also apply to e-contracts. This is also
known as electronic contract.
An e-contract is a contract created and signed electronically. You may have written a
contract in Microsoft Word, but instead of printing it out, you email it to someone, and
they sign it electronically and email it back to you. Most of us understand e-contracts
are formed when you click the "I Agree" button.
E-contract is one of the divisions of e-business. It is similar to a traditional business

wherein goods and services are switched for a particular amount of consideration. The
important factor involved is that the contract takes place through a digital mode of
communication. It provides an opportunity for the sellers to reach the end of consumer
directly without the involvement of the middlemen.
Types of E-contract
1.Click Wrap Contract
2.Source Code Escrow Agreements
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3.Software Development & Licensing Agreements
4.Shrink Wrap Contract
5. Employment Contracts
6. Consultant Agreements
7.Contractor Agreements
8. Sales, Re-Seller & Distributor Agreements
9. Non-disclosure Agreements
ESSENTIAL ELEMENTS OF ONLINE CONTRACT
Offer– The offer should be made by one party to another and should have a lawful
purpose.
Acceptance– When the person to whom the offer was made accepts it, it becomes a
promise.
Intention to create a legal relationship– A contract that does not establish a legal
relationship is not a legitimate contract; a contract that does not establish a legal
relationship is not valid.
Lawful object– Parties entering into a contract should do so with a legal purpose in
mind. To be legally enforceable, a contract must be made for a legal purpose.
Lawful consideration– Consideration is one of the most important features of any

contract. The basic concept of consideration is that if a party to a contract keeps his
word, he will receive something in return. The form of consideration has to benefit,
right, or profit.
The capacity of Parties– Parties who enter into a contract must be capable of doing so.
It is necessary to be of sound mind and to have reached the age of majority.
Free Consent– Consent should be unrestricted, and the parties’ minds should meet.
Consent must be genuine and unrestricted, and it cannot be obtained through
deception, misrepresentation, or undue influence.
The Contract’s terms and conditions- must be specific and not ambiguous.
Certainty and possibility of performance-
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Not be expressly declared to be void-
Compliance with formalities- under different laws governing the agreement.
LEGALITY & EVIDENTIARY VALUE OF E-CONTRACTS:
An electronic contract is also primarily governed by the codified provisions of the

Contract Act, 1872 (Bangladesh), as applicable to contracts in general. Hence, an
electronic contract also cannot be validly executed unless it satisfies all the essentials of
a valid contract.
Electronic contracts have also found statutory recognition under the Information and
Communication Technology Act, 2006 (ICT Act). It specifically states that a contract shall
not be deemed unenforceable, solely on the ground that electronic form/means were
used for communication of proposals, acceptance of proposals, revocation of proposals
or acceptances, as the case may. The ICT Act also recognises "digital signatures" or
"electronic signatures" (under Section 7- Legal recognition of digital signature) and
validation of the authentication of electronic records by using such digital/electronic
signatures.
Section 5 of ICT Act---It simply said that if the law requires any signature of a person,
the digital signature shall have the same power, that person can use his digital signature
instead of a handwritten one on any electronic record (data).
However, the contracts through electronic means, such as through e-mail

communications (or execution of electronic contracts) have also been recognised by
Bangladeshi courts from time to time. Courts in Bangladesh have taken a favourable
stance towards enforcing electronic contracts.
Public Procurement Act 2006.Under Section 2 (31)---, Here the definition of “In
written” means and includes, Any communication written by hand or machine duly
signed and includes properly authenticated messages by facsimile (copy machine) or
electronic mail.
The admissibility of an e-contract as 'evidence' is governed by the Evidence Act 1872 .

The Evidence Act categorises presumption of validity of documents in two buckets:-
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(i) documents that are presumed valid (i.e. if any party refutes the validity, it
has the onus to prove the same); and
(ii) documents that are to be proved as valid (i.e. the party relying on the
document has to establish its validity).
Further, a conjoined reading of ICT Act and Evidence Act vests presumptive value in e-
sign rendered by way of digital signature similar to wet ink signature and in case of
litigation, the burden of proof would rest on the party challenging the authenticity of
digital signature.
Case Study
TRIMEX INTERNATIONALA FZE LTD. DUBAI VS VEDANTA ALUMINIUM LTD (january 22,
2010)-----In this example, the parties communicated their offer and subsequent
acceptance via email. The Supreme Court of India recognized the legitimacy of an
electronic transaction and declared that if a contract is reached, a formal contract
signed.
Noted that:- The evidential value of General contract and E-contract are same ..just
here is the difference of ''digital signsture'' or Digital footprint.
JURISDICTION OF COURTS TO TRY OFFENCES UNDER E-CONTRACTS:
Which court would have territorial jurisdiction to try disputes arising out of such e-
contracts?
The Code of Civil Procedure, 1908 ("CPC") prescribes the manner of determining the
jurisdiction of civil courts in Bangladesh, based on two fundamental principles:--
(i) the place of residence of the defendant; and
(ii) the place where the cause of action arises.
However, since e-contracts are not physically signed/executed and are concluded in a
virtual space, simply imposing the traditional principles of jurisdiction, applicable to
physical contracts, to such transactions can prove to be challenging. The jurisdictional
issues of e-contracts have, however, been addressed to an extent under the ICT Act.
Section 13 of the ICT Act governs the provisions relating to time and place of dispatch
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and receipt of an electronic record, and addresses the issue of deemed jurisdiction in
electronic contracts.
However, since Section 13 of the ICT Act is subject to the mutual agreement of the
contracting parties with respect to the agreed place of contract, it is recommended that
all parties in their electronic contracts provide for a specific clause on jurisdiction and
dispute resolution mechanism.
A suit can be fine relating to the electronic contract to the Cyber Trubunal and Cyber
Appellate Tribunal constituted under this Act (Under section 68 and 82).

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E Contract

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What is a contract?

Section 10 of the Act to considered in order to constitute a valid contract are as

E-contract is one of the divisions of e-business. It is similar to a traditional business

ESSENTIAL ELEMENTS OF ONLINE CONTRACT

Lawful consideration– Consideration is one of the most important features of any

Certainty and possibility of performance-

Compliance with formalities- under different laws governing the agreement.

LEGALITY & EVIDENTIARY VALUE OF E-CONTRACTS:

An electronic contract is also primarily governed by the codified provisions of the

However, the contracts through electronic means, such as through e-mail

The admissibility of an e-contract as 'evidence' is governed by the Evidence Act 1872 .

JURISDICTION OF COURTS TO TRY OFFENCES UNDER E-CONTRACTS:

(i) the place of residence of the defendant; and

(ii) the place where the cause of action arises.

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