ELECTRONIC CONTRACTS IN INDIA. Shajeeda Tajdeen LAW CRITIQUE Sat, Apr 27, 2019, at ,12:49 PM Introduction: Electronic contracts a term which in its abbreviated form means e-contracts, these are the contracts which take place through e-commerce, wherein the parties to the contract do not meet physically. The rapid use and dependence of technology have made e-contracts viable and acceptable in the current scenario. E-contracts are at par with paper-based commercial and business contracts the only difference is that they are conducted electronically. Kinds of e-contracts: Shrink-wrap contracts: Shrink-wrap contracts are basically license agreements wherein the terms and conditions of a contract are enforceable and these contracts are usually available on the plastic or in manuals associated with the software products which is purchased by the consumer. Browse wrap agreements: These agreements bind the parties to the contract as soon as they make use of their particular website. Examples of such agreements are; policies and term of services of online shopping portals such as FLIPKART or E-BAY and these are basically in the form of ‘terms of use’, ‘user agreement’ etc. Click wrap agreements: In this type of contract the user is required to accept the terms and conditions which are known as end user agreement and thereafter he is allowed to use the software, by agreeing to the terms the user becomes a licensed user for using the website. There are specific types of check which assure the authenticity and enforceability of the contract. These are as follows: The user agreement along with the terms of service must be concretely passed on to the parties to the contract. By just merely adding a link to the terms on the website which is unable to grab the attention of the user shall not be treated as an intimation to the user. Therefore, if the user continues to make use of the website after the intimation or communication it will be considered as if he has accepted and agreed to the terms of the contract. Post the consent of the user, the law debars maker of the contract to make any more changes and alteration in the terms of the contract without the consent of the acceptor/user. In cases where the user disapproves of the changes or alterations than he should be provided with an exit option. Execution of E-contracts: The Information Technology Act, (IT) 2000 paved the way for E-contracts in India and consequently many other laws were amended to recognise and regulate the contracts which are born electronically. The IT Act talks about the attribution, acknowledgement and dispatch of the records and procedures which are held electronically. Furthermore, the IT Act also acknowledge the basic characteristic of the paper-based contracts such as proposals, acceptance of proposals, free consent etc. which are capable of being expressed or transformed electronically. The Indian Evidence Act also makes provisions for electronic contracts or records which are held electronically. The term ‘document’ as defined in the Indian Evidence Act includes 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. The said information should be in conformity with the conditions laid down in Section 65B of the IT Act, 2000 and they are also admissible in any proceedings, without no extra requirement of proof or production of the original document before the concerned the authority and shall be considered as an evidence of any content of the original or any fact therein of which direct evidence would be admissible. Electronic Signature The Information Technology (Amendment) Act, 2008 has substituted the term ‘digital signature’ with ‘electronic signature’. The definition of digital signature stated that it was technologically specific and is irreversibly unique to both the document and the signer. Whereas, an electronic signature is unbiased and general in nature. It should be remembered that there is no particular or specific standard laid for electronic signature. It can be either typed or it can also be digitized image of a hand-written or physical signature. With the amendment the scope of electronic signature was expanded so as to make it applicable in the world of e-commerce. The Apex Court in this regarded stated that “Once the contract is concluded orally or in writing, the mere fact that a formal contract has to be prepared and initialled by the parties would not affect either the acceptance of the contract so entered into or implementation thereof, even if the formal contract has never been initialled”, and by these words of the Supreme Court it was clear that e-mails which clearly show the intention of the parties are not only binding on the parties but they are also enforceable in the Court of law. Further these words of the Apex Court clearly dismiss the contentions that exchanges made through e-mail do not possess the quality of a contract and thus they cannot be treated as a contract in the Country. Electronic Contracts and their legal validity in India: The Indian Contract Act, 1872 accepts and regulates the traditional agreements and arrangements which eventually become contracts whether oral or written. The only pre-requisite is that the contracts should include all the essentials which are legally necessary as for instance; free consent, lawful consideration, lawful object etc. It should be noted that there is nothing mentioned in the Contract Act stating that it disregards or disapproves of electronic contracts. So if electronic contracts have all the characteristic of physical contract then it shall be enforced in the same manner as in the case of a physical contract. The only shortcoming in case of an electronic contract is that there is hardly any scope left for negotiation. E-contracts have a straight forward option of accepting the entire contract or leaving the entire contract, the choice is left to the user. There are numerous matters before the Indian Judiciary which have time and again proved the validity, negotiability, and enforceability of e-contracts. The Supreme Court in the case of LIC India vs. Consumer Education and Research Centre stated that “In dotted line contracts there would be no occasion for a weaker party to bargain as to assume to have equal bargaining power. He has either to accept or leave the service or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forgo the service forever.” Conclusion: With the advancement of the technology no doubt e-contracts are occupying a major part in trade and business environment, but with more usage there are higher chances of illegal activities such as forgery, fake documentation etc. which are very much evident, so we need to frame laws and policies which suite the changing environment. No doubt, Indian laws have developed themselves a lot to cater to the needs of the environment, but there are still some loopholes which allow the fraudsters to find their way. E-contracts have made life simpler but they still have no scope of negotiation, which leaves the acceptor with little or no scope of bargaining.