Electronic Contract Creation

In his Book “Implicity of Electronic Contract Formation: With Reference to Email and Website Copyright” (2009), Taimur Inayat Malik wrote:

“A contract can be created in numerous ways varying from either being created orally, electronically, or in writing. This is evidenced by section 4 of the Sale of Goods Act 1979 which states that a contract of sale: “… may be made in writing (either with or without seal), or by word or mouth, or partly in writing and partly by word of mouth, or maybe implied from the conduct of the parties.” (Bainbridge, D. (2004) Introduction to Computer Law. 5 th edn. Essex: Pearson Education Limited, p. 304). Today the world is seen to be inclined towards forming contracts more electronically than adopting any other way of making contracts. When we say contracting electronically, this refers to contracts made through the modern mode of communication such as emails and websites. However does the general law of contract applies to the modern era of contracting and doing business, a question which we need to determine first.

Under the English law for there to be a valid contract the existence of the following elements is very essential:

• Two or more parties to the contract,
• The parties must enter into an agreement: which includes an offer (Storer v Manchester City Council, [1974] 1 WLR 1403, (CA)) followed by an unequivocal acceptance (University of Edinburgh v Onifade, [2005] SLT (Sh Ct) 63 at (6))
• The parties to the contract must have intention to create legal obligations (Balfour v Balfour, [1919] 2 KB 571, (CA)), and
• Consideration must be present. (Currie v Misa, [1875] LR 10 EX 153).

Therefore a contract made online under English law would require the same elements to be present in it as mentioned above. However if we compare the English law with Thai contract law, then for constituting a valid contract under Thai law presence of only three major elements is required, ie . an offer, an acceptance and the intention to be legally bound, excluding the concept of consideration.”