Legal basis

• Law on Electronic Transactions 2005
• Decree 52/2013/ND-CP on e-commerce
• Decree 85/2021/ND-CP amending Decree 52/2013/ND-CP on e-commerce

Content

Freedom of agreement is one of the important principles in entering into a contract. This means that the parties are free to choose the appropriate form when entering into a contract. However, in order to ensure legal safety in contractual transactions between the parties, in order to create evidence of the contract being entered into, to create a habit of caution when entering into a contract, and to prevent fraud, Contract law places limits on certain types of contracts that must be made in writing, otherwise the contract will be void.

An electronic contract raises the issue of reconsidering the requirement for a written form in entering into a contract. An electronic contract is not presented in a tangible form such as a document, but is an invisible complex of integrated currents, computer codes, and algorithms that have no fixed state. The terms of this type of contract may appear on a web page, in an email, or in a file, but they are not written in white and black ink, but exist only in memory or on the computer screen. Therefore, the question is whether the requirement of the written form can be applied to electronic contracts, whether there is a concept of “text in electronic contract or not?

In the United States, people do not use the term “text”, but instead use the term “record”. Section 2.13 of the United States’ Uniform Electronic Transactions Act 1999 states: “A record is understood as information recorded on a tangible medium or stored in an electronic or other medium and may be recoverable in a recognizable form. The concept of “record is more relevant to an electronic contract because it not only retains its meaning as a tangible document in the traditional sense, but can include any information kept by other means of communication.” Electronic or other means that can be recovered in an identifiable form. This initiative by US lawmakers has alleviated concerns for online customers as well as online retailers and increased the confidence of electronic contract transactions. Canada and Singapore also have a similar approach when these countries enacted the Electronic Transaction Law.

Another way to remove legal barriers to e-contracts is to recognize that e-contracts have the same legal validity as contracts in written form (traditional paper documents). This is the solution provided in the 1996 UNCITRAL Model Law on E-Commerce (Article 5) and many countries including Vietnam have also followed this direction. This way of regulation creates the basis for the immediate application of legal documents governing traditional transactions in the condition that it is not possible to give a concept of the general form of the document, suitable for the whole environment. traditional as well as electronic environments.

Above is our consultancy about this issue. If you need more detailed advice and answers as well as how to access this service, please contact directly the Deputy Director of Sales: Lawyer Nguyen Duc Trong via hotline: 0912.35.65.75, 0912.35.53.53 or call the free legal consultation hotline 1900.6575 or send a service request via email: info@hongbanglawfirm.com hoặc lienheluathongbang@gmail.com

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