INTRODUCTION Formatted: Font: (Default) Times New Roman, 14 pt, English

(India)
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With the headways in computer innovation, media transmission and data innovation Underline, English (India)

the utilization of computer systems has increased extensive fame in the current past; Formatted: Justified

computer systems fill in as channels between for electronic exchanging over the Formatted: Left: 0.88", Right: 0.76"

globe. By electronic exchanging we don't simply mean the utilization of computer Formatted: Font:

systems to go into exchange between two human exchanging accomplices by

encouraging a correspondence yet electronic exchanging or electronic business
additionally implies those agreements which are entered between two lawful people
alongside the guide of a computer program which goes about as an operator
notwithstanding when it has no aware of its own yet in addition by starting it.
An e-contract is an agreement demonstrated, executed and established by a Formatted: Font: Bold

product network of framework connecting the offeror and offeree through Formatted: Font: Bold

electronic medium. Formatted: Font:

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Computer programs are utilized to robotize business forms that oversee e-contracts. Formatted: Font:

E-contracts can be mapped to between related projects, which must be indicated

deliberately to fulfil the agreement necessities. These projects don't have the abilities
to deal with complex connections between gatherings to an e-contract. E-contract is
any sort of agreement shaped over the span of web based business by the connection
of at least two people utilizing electronic means, for example, email, the cooperation
of a person with an electronic specialist, for example, a computer program, or the
communication of no less than two electronic operators that are modified to perceive
the presence of an agreement. Customary contract standards and cures additionally
apply to e-contracts. This is otherwise called electronic contract. Formatted: Font: (Default) Times New Roman, 14 pt

With the changing needs of time, another idea of E-Contracts or Electronic Formatted: Font:

Contracts has concocted the improvement of Electronic Commerce framework over

the globe. Electronic trade can be characterized as "Electronic purchasing and
offering on the Internet and incorporates every one of the exercises that a firm
performs or offering and purchasing administrations and items utilizing computers
and correspondence advancements."

The need and prerequisite for electronic type of agreement can essentially be Formatted: Font:

credited to the requirement for a speedy, productive and efficient method of

contracting. The virtual the internet being efficient and unbound by difficulties of
separation gives an open door for gatherings to go into an agreement over web. In
the electronic age, the entire exchange can be finished in a moment or two, with the
two gatherings just fastening their advanced marks to an electronic duplicate of the
agreement. There is no requirement for postponed messengers and extra voyaging
costs in such a situation. In a worldwide business condition, parties are going into
various sorts of exchanges.

These may incorporate rent understandings, contracts representing the deal and buy Formatted: Font:

of products, debatable instruments, advance ascension and so forth. With a specific

end goal to help electronic exchanges comparably as ordinary exchanges electronic
contracts are required, which play out a similar capacity and meet an
indistinguishable necessities from traditional this paper mainly aims to study the
validity of e-contract and further analyse the rules and provisions under the ICA and
IT act.and finally tries to enumerate the forms of e contract.

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INTRODUCTION TO CONTRACTS Formatted: Font: 14 pt

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As per the Indian Contracts Act,1872 (hereon referred to as ICA), a contract is
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defined defines Contract as “an agreement enforceable by law.” This definition
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can be widely interpreted by the Ccourts and has evolved through various decided
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judgements of the English courts as well as the Supreme Court of India. A valid
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contract has certain requirements such as the presentation of a legal offer, valid and Formatted: Font:
unconditional acceptance and a lawful consideration that is to be paid in due course Formatted: Font: (Default) Times New Roman, 14 pt
of execution of the contract . It also has various laws governing contracts such as Formatted: Font: Bold, Underline
valid consideration, lawful object among many more. The person making the Formatted: Font:
proposal is called the “promisor”, and the person accepting the proposal is called the Formatted: Font: (Default) Times New Roman, 14 pt
“promisee” i.e otherwise Oferror and Offeree vice versa. And aA contract which Formatted: Font:
ceases to be enforceable by law becomes void when then it ceases to be un Formatted: Font: (Default) Times New Roman, 14 pt
enforceable against parties to it. Formatted: Font:
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INTRODUCTION TO E-CONTRACTS Formatted: Font:

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An electronic contract is an understanding made and "marked" in electronic frame
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— as it were, no paper or other printed copies are utilized. For instance, you
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compose an agreement on your computer and email it to a business relateaffiliate or
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a provider, and the business relate messages along with the agreement in it backs
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with an electronic mark demonstrating seeking the receiver to acknowledge the Formatted: Font: (Default) Times New Roman, 14 pt, Bold,
communication so by this action in due course the offer is made in the form of Underline, English (India)
electronic communication – The E-Mail ment. Formatted: Font: 14 pt, Not Bold, No underline, English
(India)
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An e-contract can likewise be as a "Tick to Agree" contract, generally utilized with
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while downloading ed the programme online ing: “The end client” or “ the Formatted: Font:
downloader of the said programme clicks an "I Agree" pcatch on a page containing Formatted: Font:
the terms of the product permit before the exchange can be finished. Order of the Formatted: Font:
agreements can be of two sorts i.e. web-wrap ascension and therapist wrap Formatted: Font:
understandings. We regularly go over these e-contracts in our regular daily existence Formatted: Font:
however are ignorant of the legitimate complexities associated with it. Web-wrap Formatted: Font:
understandings are electronic ascension which requires consent of the gathering by Formatted: Font:

method for tapping the "I concur" or "I affirm" interface, for instance in the event Formatted: Font:

that E-Bay by which we acknowledge the terms and conditions specified by the Formatted: Font:

merchant. Formatted: Font:

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E-CONTRACTS IN INDIA
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The 1872 Act has not been amended yet to specifically include the scope of an
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Electronic Agreements or Click-wrap Agreements. The Supreme Court of India in
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“Trimex International FZE vs Vedanta Aluminium Limited, India, 2010 (1) Formatted: Font: Bold, Underline

SCALE 574” held that, “Uunless an inference can be drawn from the facts that the Formatted: Font: Font color: Auto, Pattern: Clear

parties intended to be bound only when a formal agreement had been executed, the
validity of the agreement would not be affected by its lack of formality”. Further, “In Formatted: Font: No underline, Font color: Auto, Pattern:
Clear
Shakti Bhog Foods Limited vs. Kola Shipping Limited, (2009) 2 SCC 134”, the
Supreme Court held that from the provisions made under Section 7 of the
Arbitration and Conciliation Act, 1996 that “the existence of an agreement can be Formatted: Font: (Default) Times New Roman, 14 pt

inferred from a document signed by the parties, or an exchange of letters, telex, Formatted: Font: Bold, Font color: Auto, Pattern: Clear

telegrams or other means of telecommunication, which provide a record of the

agreement”. Formatted: Font: (Default) Times New Roman, 14 pt
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In addition to this, to give statutory recognition of E-Contracts, The Parliament

passed the Information Technology Act (2000) which overruled the previous E-
Commerce Act of 1998. In the Information Technology Act particularly Section 10-
A, an electronic contract is valid and enforceable. The only essential requirement to
validate an electronic contract is compliance with the necessary pre-requisites
provided under the Indian Contract Act, 1872. Formatted: Font: (Default) Times New Roman, 14 pt

Concerning Electronic Contracts and arrangements for web based getting the Formatted: Font:

arrangements of the IT Act, 2000 are pretty much like the arrangements of
UNCITRAL Model Laws but a couple of minor changes. The Indian IT Act,2000
anyway does not have any express arrangement with respect to the legitimacy of
online contracts. The reason being the specialized meaning of agreement under
Indian Contract Act,1872. The Indian Contract Act 1872 accords statutory impact to
the fundamental precedent-based law upon rule 3 that a legitimate contract might be Formatted: Font:

made on the off chance that it is made by free assent of gatherings, skilful to Formatted: Font:
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contract, for a legal thought and with a legal protest and which isn't explicitly
announced void. The Contract Act does not recommend a specific strategy for the
correspondence of offer and acknowledgment.

Consequently, there is no prerequisite of composing for the legitimacy of Formatted: Font:

agreements, with the exception of in such situations where the necessity of

composing is particularly ordered by law. Hence, the legitimacy of online contracts
couldn't have been tested exclusively on specialized grounds even before the
Information Technology Act came into constrain. While Section 3 gives
confirmation to electronic records (counting E-Contracts) while should be possible
through computerized marks or a type of electronic acknowledgment to the terms of
an agreement. Section Segment 4 and Section 5 give lawful acknowledgment to Formatted: Font: Bold

electronic records and advanced marks separately. Formatted: Font:

Hence if a man through electronic medium gives his consent to some particular Formatted: Font:

terms of the agreement, he would not be in a situation to disprove it later. The

electronic records consequently framed are thought to be substantial for all reasons
and might be held if there should arise an occurrence of a debate emerging with
regards to the terms of the agreement, as per arrangements of Section 7. Area 13 of
the IT Act,2000 clarifies and defines as to and elucidates, bury alia, when the receipt Formatted: Font:

and dispatch of electronic records happen and is implied for finding out of the
season of dispatch and receipt of data, which is a pertinent factor in numerous
agreements.

This arrangement goes about as a 'useful proportionate' of offer and Formatted: Font:

acknowledgment in the event of Electronic Contracts and furnishes these agreements

with measure up to lawful sameness as the paper based authoritative ascension
action making it right and valid to do so.do. Area 13 of the Information Technology Formatted: Font:

Act, in this manner, just offers a structure for understanding the development of E-
contracts in India. It doesn't, in any capacity, change or adjust the current substantive
law of agreement. Formatted: Font: 14 pt

Further, the recognition of a contract is accorded under the Indian Evidence Act, by
which the term “document” includes any information contained in an electronic
record which is printed on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer. Such information are in conformity with the
conditions of Section 65 (B) of the Act which shall be admissible in any Formatted: Font: Bold

proceedings, without any further proof or production of the original document before Formatted: Font: Bold

the concerned authority and shall be regarded as an evidence of any content of the
original or any fact stated therein of which direct evidence would be admissible.

How to enter into E-Contracts: Formatted: Font: Not Bold, No underline

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E-Contracts can be entered into through modes of communication such as e-mail, Formatted: Font: Font color: Auto

internet and fax. The only essential requirement to validate an E-Contract is Formatted: Justified, Space Before: 0 pt, After: 0 pt,
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compliance with the necessary pre- requisites provided under the Indian Contract
Act, 1872. Which are:
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Offer and Unconditional Acceptance - Which may be made online or by e-mail Formatted: Font: Not Bold, Font color: Auto

communication.
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Lawful Purpose and Consideration - A contract is enforceable by law only when it is Formatted: Font: Not Bold, Font color: Auto

made for a lawful purpose and for some consideration. It must not defeat any
provision of law and must not be fraudulent in nature.
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 Capacity of Parties and Free Consent - Parties to a contract are capable of Formatted: Font: Not Bold, Font color: Auto

entering into a contract, if they satisfy the requirements of Section 11 and 12 of the
Indian Contract Act, 1872 (capacity to contract), and consent of the parties must be
free as per Section 13 of the Indian Contract Act, 1872. Formatted: Font: Font color: Auto

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color: Auto

VALIDITY OF CLICKWRAP AGREEMENTS IN INDIA Formatted: Font: 14 pt

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Click-wrap agreements as mentioned in the introduction are those in which the client Formatted: Font:

clicks “I Agree” to the Terms and Conditions of the website/firm before it is granted Formatted: Font:

access to use the features of the website or to proceed with any transactions online.
These agreements give the client an illusion of equal bargaining power in a contract
whereas in reality the client at the end of the day has absolutely no bargaining power
with respect to the terms of the contract in question. S/he is left with a take it or
leave it option where in case the client rejects the terms and conditions, the services
of the website are made unavailable to him/her.
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In a case where a client files a case to rescind the contract, without a legally
justifiable reason, technically the contract would be valid. Here, a justifiable reason
could be the hidden nature of such a contract where a reasonable man would not be
able to identify where the contract was and that he even accepted such a contract.
We can take the example of the case of Specht vs Netscape Comms. Corpn Formatted: Font: Bold, Underline

wherein the contract mentioned that by downloading the defendants software, the Formatted: Font: (Default) Times New Roman, 14 pt,
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plaintiff had agreed to the terms of the agreed.

This particular statement was mentioned in the contract however, it was nowhere
mentioned near the Download button. The plaintiff was hence unaware that
downloading the software would make them subject to the License Agreement. The
Court held here that the defendant failed to make the contractual nature of the
“Download” button obvious and hence the plaintiffs were not subject to the terms of
the License Agreement.

Another legally justifiable reason would be the unconscionability predisposed of the

contract. Unconscionability predisposped here refers to a doctrine in contract Formatted: Font color: Auto

law that describes terms that are so extremely unjust, or overwhelmingly one-sided
in favour of the party who has the superior bargaining power, that they are contrary
to good conscience. In the decided Supreme Court case of L.I.C. Of India & Anr Formatted: Font: Bold, Underline

vs Consumer Education & Research 1995 AIR 1811, 1995 SCC (5) 482, the court
held that “It is, therefore, the settled law that if a contract or a clause in a contract is
found unreasonable or unfair or irrational one must look to the relative bargaining
power of the contracting parties.

In dotted line contracts there would be no occasion for a weaker party to bargain or
to assume to have equal bargaining power. He has either to accept or leave the
services or goods in terms of the dotted line contract. His option would be either to
accept the unreasonable or unfair terms or forego the service forever. With a view to
have the services of the goods, the party enters into a contract with unreasonable or
unfair terms contained therein and he would be left with no option but to sign the
contract.” Formatted: Font color: Auto, Text Outline, Shadow

As for the consent of parties, in such contracts, consensus ad idem is assumed as was
elaborated in the same case as above “Though ad idem is assumed, the standard Formatted: Font: Font color: Auto, Pattern: Clear

form contract is the rule. The consent or consensus ad idem of a weaker party be
totally absent. He must assent to it in terms of the dotted line contract or to forgo the
goods or services.”

It seems from the doctrine of unconscionability predisposed that most Click wrap Formatted: Font: Font color: Auto, Pattern: Clear

contracts would fail if taken in the technical sense. With this in mind and to tackle
this problem, the Supreme Court in the same case as above held that “There can be
myriad situations which result in unfair and unreasonable bargain between parties
possess wholly disproportionate and unequal bargaining power. The court must
judge each case on its own facts and circumstances.” Formatted: Font: 14 pt

It was inferred from the judgement that when a contract is of such a nature that it
can be stated to be an Adhesion Contract and further when the parties to the
contracts do not have equal bargaining power then in the light of Article 14 of the Formatted: Font: Bold

Constitution of India (guaranteeing equal protection of law to its citizens) the

Supreme Court shall strike an unfair or unreasonable contract.

From the above, we can infer that Click-wrap agreements are legally valid when the
contract (the terms of the contract or a message clarifying that entering the website
would be considered an acceptance to the contract/terms and conditions) is made
reasonably evident to the client/user and when the terms of the contract are not
unreasonable or unjust or such that it could strike the consciousness of the client
such that it does not fall in the ambit of the doctrine of unconscionability
predisposed.

ISSUES REGARDING E-CONTRACTS AND ITS LAWS Formatted: Font: 14 pt

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In an online situation, the likelihood of minors going into contracts builds, all the
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more so with the expanding use of online medium among youngsters and their
inclination to shop on the web or buy online products/administrations. It ends up
essential for an online business entry to keep such plausibility in thought and qualify
its site or shape expressing that the person with whom it is exchanging or going into
the agreement is a noteworthy.

Stamping of agreements is yet another issue. An instrument that isn't properly Formatted: Font:

stamped may not be allowable as confirmation unless the important stamp obligation
alongside the punishment has been paid. Be that as it may, instalment of stamp
obligation is material if there should be an occurrence of physical reports and isn't
achievable in instances of e-contracts. In any case, as the instalment of stamp
obligation has gone on the web and e-stamp papers are accessible, it can turn into a
plausibility later that stamp obligation may be asked on e-contracts also. Another
problem would be that despite the fact that the IT Act guarantees that the legal
framework in India perceive advanced signature as a legitimate lawful instrument for
verifying an e-contract.

Be that as it may, such a validation under the IT Act has additionally been subjected Formatted: Font:

to deviated crypto framework and hash work, along these lines significantly limiting
the extent of the said confirmation device. Further, unique countries have approved
distinctive benchmarks of electronic mark, which may go about as an obstacle
concerning requirement of cross outskirt contracts.
The likelihood of loss of information/records by virtue of specialized blunders can't Formatted: Font:

be precluded if there should arise an occurrence of web based business. Be that as it

may, not at all like the Uniform Computer Information Transactions Act iIn the Formatted: Font:

United States, the IT Act does not catch arrangements for such circumstances.

SOLUTIONS PROPOSED Formatted: Font: 14 pt

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Firstly, tThe IT Act should be amended to include a standard system by which all
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websites which require the acceptance of the E-contract to avail the services, can
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confirm that the user wanting to be party to the contract is legally competent to do
so. In case of minors, the website could prompt the involvement of the minor’s
parents/legal guardian to be party to the contract on behalf of the minor. Further,
Indian law must provide for a standard stamping system for all E-contracts to assess
the originality and credibility of the instrument in a court of law.

Another suggestion would be to update and modernise the technical aspects of the IT Formatted: Font:

to make it applicable to advanced crypto framework e.t.c etc. as the case may be. Formatted: Font:

The Indian Evidence Act must also be amended to accommodate a case wherein
there is a loss of information/records by special blunders and the actions to be taken
further in that respect. A reference point to all these amendments could be the
advanced and more specific laws of other countries with respect to E-contracts. Formatted: Font: 14 pt, Not Bold, No underline

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CONCLUSION Formatted: Font: 14 pt

It can be effectively reasoned that the Electronic type of contracting has developed Formatted: Font:

as a noteworthy type of arrangement of agreements and its esteem has expanded

essentially finished the timeframe. The Indian Legislature keeping in mind the end
goal to control the rights and liabilities of gatherings if there should be an occurrence
of Electronic Contracts has passed the IT Act, 2000 and the Electronic Commerce Formatted: Font:

Act,1998. The arrangements of these demonstrations approve the development of

electronic contracts.

The offer and acknowledgment given in type of information messages will be held Formatted: Font:

substantial. Anyway the arrangements of the demonstration are to be perused in

consistency with the Indian Contract Act,1872 and the point and goals of the
agreement ought not be in negation to the arrangements of the Contract Act.

We have likewise observed from different legal choices that offer and Formatted: Font:

acknowledgment given in type of e-mails would be held as legitimate and the

agreement along these lines framed would tie. The Electronic Contracts are an
amalgamated type of Cyber Law and Contractual law and hence it gets its power
from both.
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(India)