Electronic Contracts: Enforcement of Electronic Contracts
| Autor | Prof. Dr. Isabel Hernando |
| Cargo del Autor | Electronic Contracts: Enforcement of Electronic Contracts |
On-line contracts signed electronically can be properly formed and perfected as are other contracts. They can be signed in environments that may only be accessed by specific companies conducting a certain type of business (e. g. EDI and Intranet contracts) [70] or in areas open to the public, for professionals/businesses or consumers. In the latter case, there are two basic aspects that have legal implications which must be considered when forming on-line contracts. These two aspects have been addressed by national laws[71], international organizations[72], and Community organizations[73], which have attempted to provide a uniform solution with the following: [
Enforcement of Electronic Contracts.
The second question that arises in matters of electronic contracts is their enforcement. National laws on electronic commerce, as well as International Laws and Community Directives agree that on-line documentation has the same legal value as an original paper document, provided that the authenticity, non-repudiability, integrity and confidentiality of the document and its content are assured. The instruments used for such purposes are electronic signatures and encryption.
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Encryption and Confidentiality
Encryption is the method that allows the confidentiality of the contents of any electronic transmission to be maintained. There are two kinds of encryption, the conventional or symmetric (e. g. DES, IDEA, RC2 algorithms) , and the asymmetric or public key (e. g. RSA, DSA, DSS algorithms) , the latter kind being the most popular in open areas on the Internet. With public key encryption, each person to the agreement has a pair of keys: a private key that is confidential (i. e. , not shared) , and a public key that is distributed through the Internet. When a communication is encrypted using the public key, it may only be opened by the person with the corresponding private key. The use of encryption methods on the Internet is widespread (e. g. electronic commerce, payments via the Internet, transfers of funds, transfers of personal data and digital signatures).
Computer encryption programs have been the subject of legal regulation at the national as well as international level with respect to their importation/exportation and their use within a country[74]. There are important differences between countries; in some countries the use of encryption methods may be prohibited or may be subject to authorization, while in others, there may be no restriction.
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Authenticity - Integrity and Electronic Signatures
Electronic signatures can be used in various ways[75]:
- Electronic signatures for official communications with public institutions (e. g. tax returns, transmission of legal documents);
- Electronic signatures for business communications in open areas (e. g. financial transactions, electronic commerce);
- Electronic signatures in restricted areas (e. g. a corporate Intranet);
- Electronic signatures for...
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