Electronic contract in the Malaysian contracts act 1950: an analytical comparison with the EU directive on E-commerce and the US uniform computer information transaction act 1999

摘要

The World Wide Web (www) has brought new opportunities and challenges to various people. The businesses utilise it for their benefit by expending their activities not only in physical space but also in virtual space in search of potential customers. Thus contracting becomes a fundamental element in the e-commerce world. Electronic contracting raises various new legal issues. The general inclination of the legislature and the legal profession is to apply the existing law to the new sets of virtual commerce problems without much change; even where modification is necessary or unavoidable to protect the interest of e-businesses and econsumers. However, the Malaysia government has taken initiatives to amend the existing legislation while a new piece of legislation on e-transaction is being drafted (expected to be tabled next year) to enable the growth of e-commerce. This paper seeks to analyse, inter alia, the general principle of contract, forms of electronic contracts, time of formation of contract, together with the applicability of the principles of click wrap agreement and digital signature in an e-contract under the Malaysian Contracts Act 1950 in comparison with the EU Directive on E-commerce and the US Uniform Computer Information Transaction Act 1999. It then concludes by suggesting appropriate modification for the Malaysian Contracts Act 1950 to suit the e-commerce environment in the light of the UNCITRAL Model Law on E-commerce, Hong Kong, UK, US statutes and the EU's Directives.