Legal basis
- Civil Code No. 91/2015/QH13 issued by the National Assembly on 2015 November 24th;
- Law on e-transactions No. 51/2005/QH11 issued by the National Assembly on 2005 November 29th;
- Circular No. 52/2013/ND-CP issued by the Government on 2013 May 16th on E-commerce.
What is the E-contract?
According to Article 33 of the Law on e-transactions 2005: “E-contracts mean contracts established in the form of data messages”. Article 4.12 of the Law on e-transactions 2005 provided that: “A data message means information created, sent, received, and stored by electronic means”.
In general, an e-contract is a type of contract in which the parties agree on the establishment, change or termination of the rights and obligations to send, receive, and be stored on electronic means such as electronic technology, digital, optical and other electronic means.
Legal value of e-contract
According to Article 34 of the Law on E-transactions 2005: “the legal value of an e-contract cannot be denied as it is expressed in the form of a data message” Article 14 of this Law also stipulated that: “The data message must not be denied the value of being used as evidence because it is a data message“. The evidence value of the data message is determined on the basis of the reliability of the way data messages are created, stored or transmitted; the way to ensure and maintain the integrity of the data message; the way to identify the creator and other suitable factors.
In addition, some specialized laws also have regulations that recognize the legal validity of e-contract. For example, the labor law officially recognizes the form of electronic labor contracts in the Labor Code 2019. Under Article 14 of the Labor Code 2019, electronic labor contracts are as valid as written labor contracts. In other words, labor contracts concluded in writing or through electronic means have the same legal value.
The form of signing and executing the e-contract & the validity of the e-contract
Pursuant to Article 35 and Article 36 of the Law on E-transactions 2005:
- The parties shall have the right to agree on the use of electronic means in signing and executing contracts.
- The form of signing and executing the e-contract must comply with the provisions of this Law and the law on contract.
- The parties have the right to agree on technical requirements, endorsements, conditions for ensuring integrity and security related to such e-contract.
- In signing a contract, unless parties have otherwise agreed, the offer to enter into the contract and the acceptance may be made through the data message.
Notably, the validity of the contract in general and the e-contract in particular relies on the criteria as prescribed in the Civil Code 2015, including: parties in the transaction must have legal personality or legal capacity in conformity with such transaction; parties in the transaction must act voluntarily; the purpose and contents of the transaction are not contrary to the law and/or social ethics; and the form of the contract must be in accordance with the provisions of the law, without relying entirely on how the contract is entered into. In other words, the engagement of the contract under the form of a written, oral, or electronic means is not a decisive factor affecting the legal validity of such contract in general, and the e-contract in particular.
Mentioned-above is a consulting article on “E-Contract” of Apra Law Firm. If you have any question about this issue, please do not hesitate to contact us via hotline for advice and support.
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