When Cyber Contracts are being entered into, there will be need to define  "Attribution of the document", "Time of Execution", and "Place of Execution". Information Technology Act-2000 which applies to India has taken care of defining these elements. For example, the time of a contract in respect of  an e-mail message is determined as the time the message leaves or enters the e-mail systems. The Act is however silent as to who would be responsible in case of any delay or loss of message due to any technical problems in between.

While the two ISP s at each end act as the designated agents of each of the contracting parties and therefore be held as "Extensions" to the persons, other routers or systems in between are not agents of either of them and come into play because of the nature of the TCP/IP protocol.

In the absence of a clear guidance in this regard there could be many controversies that  may arise. Similarly there can be errors that can creep into messages because of technical reasons. ITA-2000 has not adequately dealt with such a possibility.  In the light of this situation in India, it is interesting to observe that the recent "Uniform Electronic Transactions Act" passed in California has taken care to cdefine the legal liabilities in respect of technology induced errors in the transmission of messages.

Extracts from Uniform Electronic Transactions Act. passed in California effective from January 1 2001: (Details available here)

1633.10.  If a change or error in an electronic record occurs in a transmission between parties to a transaction, the following rules apply:

   (1) If the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure, but the other party has not, and the nonconforming party would have detected the change or error had that party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record.

   (2) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, all of the following conditions are met:

   (i) The individual promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person.

   (ii) The individual takes reasonable steps, including steps that conform to the other person's reasonable instructions, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record.

   (iii)The individual has not used or received any benefit or value from the consideration, if any, received from the other person.

   (3) If neither paragraph (1) nor (2) applies, the change or error has the effect provided by other law, including the law of mistake, and the parties' contract, if any.

   (4) Paragraphs (2) and (3) may not be varied by agreement.

Your views can be sent here

Naavi

January 11, 2001