Ahmad Mahmoud Al Masadeh, Ahmed M. Khawaldeh, and Mohammad Assaf Al-Salamat’s article “The Electronic Contract in Civil and Commercial Codes” sheds light on the many unsettling legal issues that electronic contracts raise for the historical body of law we roughly call contract law.
The authors direct our attention to key social science principles—like legal positivism, technological determinism, and institutionalism—that help us understand the nature and rationale of contracting and how these fundamental principles might lead us to think differently about electronic contracts. The article’s main point is that fundamental technological advancements … [are] profoundly and rapidly reshaping and remaking our legal institutions and their basic functions.
The key research question posed by the article’s authors is this: “How are electronic contracts incorporated into civil and commercial codes, and what legal issues arise from their use?” Their working assumption is that electronic contracts are on their way to widespread acceptance but currently are hitting some significant legal road bumps—especially concerning their validation, their enforcement, and consistency across jurisdictions.
To answer their research question, the authors of this article conducted a comparative study of several different (mainly Western) legal systems. They reviewed both national and international codes, case law, and a fair amount of legal commentary across these different systems to find what seemed like both common trends and common problems.
The article provides a qualitative analysis of the legal structures that surround e-business. The authors examine how various jurisdictions—within and outside the United States—treat the electronic contract, focusing on the key issues of authentication, assent, and enforceability. This comparative method underscores both the advances that have been made in the law of the electronic contract and the substantial deficits that remain.
This article relates to several important class concepts, such as contract theory, legal pluralism, the digital divide, human error and globalization in cybersecurity. The authors emphasize the difficulties faced by marginalized groups in accessing electronic contracts, especially because of the group’s overall lack of digital literacy and access to the technology itself. Their concerns spotlight the issues of equity and inclusion that are central to this class.
The investigation pertains to the marginalized in society, especially in relation to justice and access to digital technologies. Individuals without access to the digital tools, or the know-how to use them, might soon find themselves cut off from economic opportunities, which are increasingly shifting to a web-based platform. The push for digital literacy is thus a very pressing concern for equity and inclusion.
The research yields two main findings. One is that legal harmonization across jurisdictions is essential for e-contracts to work effectively. The other is that these contracts have the potential to increase access to both legal and commercial systems—if the digital access problems that so many in this country face are solved.