Abstract

The advancement in the field of information technology has led to many developments and has had a pertinent impact on business and commerce. With the emergence of e-commerce, which brought a shift from paper-based transactions to electronic transactions, a contract, which forms a fundamental premise for business and commerce, also needed its upgradation to contain the new aspects of e-commerce, bringing in the need for e-contracts. Due to the differences between e-contracts and conventional contracts, some novel and interesting technical and legal challenges have arisen, such as the formation and conclusion of e-contracts, their validity and enforceability, the applicability of established principles of contract law to e-contracts, and so on and so forth. The traditional law for governing contracts, “The Indian Contract Act, 1872,” which exclusively dealt with contracts, was not sufficient for dealing with this new system of e-contracts. The Information Technology Act, 2000, had to incorporate a provision for providing legality for e-contracts. With three types of e-contracts - browsewrap, clickwrap and shrink-wrap - there has always been confusion about their legality. The position of their legality itself differed from one country to another. Whether there exist all the essentials needed for a contract in an e-contract is a debatable question, especially with respect to the element of free consent. This paper examines the ramifications of the Information Technology Act of 2000 on the formulation and enforcement of electronic contracts and draws parallels between the fundamentals of electronic contracts and those of contracts under the Indian Contract Act of 1872. Further, this paper tries to analyse the legality of e-contracts and their position in India by analysing the legislative and judicial approaches.

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