In traditional contracts, the contract depends on the agreement of the parties. This agreement is made through a contract formation process. First, one of the parties makes an offer to supply goods or services. The other party will then review the offer and either accept or reject it. If they accept the offer, that acceptance is considered sufficient to create a binding contract between the two parties. Offer and acceptance can be made with certain terms and conditions. There are also restrictions on how an offer and an acceptance can be made, when they are deemed to have been made and whether they are effective in whole or in part.
While the above process is generally applicable to most transactions between equally located parties, there are some issues when one of the parties is a merchant or advertiser. What elements of an advertisement or a fixed price for the sale of goods or services constitute an offer? In law school, we studied several legal cases that discussed when an advertisement can be considered a sufficient offer to allow acceptance and thus form a contract. Merchants and service providers should be careful to develop their in-store advertising and display so that they know when they are making a binding offer.
In most jurisdictions, this process was codified before the development of electronic media and, more specifically, the development of electronic commerce. For e-commerce providers there is the double complication of being a merchant making ad-type offers and the issue of electronic media. In Vietnam, there are specific regulations for the process of entering into a contract between an e-commerce provider selling goods or services online and a consumer. This article will examine the legislation governing the formation of e-commerce contracts in Vietnam.
When an e-commerce supplier in Vietnam who has an online ordering feature on their website posts an item or service for sale, they normally include the price and introductory details about the item or service. . There are also the implied terms and conditions which are included elsewhere on the website. According to the regulations governing e-commerce in Vietnam, when this introductory information and terms and conditions are made electronically without specifying a receiving party, it is not an offer that gives rise to a contract during the acceptance, but a notice of offer. This becomes an offer, however, if the terms and conditions state what responsibilities will be imposed upon acceptance. This means that it is important to understand that simply putting an item up for sale and having a customer offer to pay for it is not enough to form a binding contract, unless the terms and conditions specify. that by accepting the price and agreeing to pay it, the online merchant will be bound as if it were an acceptance of the offer. Otherwise, the offer to pay the price of the good by the consumer will be considered an independent offer, and it is only after acceptance by the trader that a contract will be formed. The latter is the normal pattern contemplated by law, but if the trader wants the display of goods or services to constitute an offer, then special care must be taken. This is a question that must be taken into account when developing the terms and conditions of the trader.
Normally, then, a customer has to create and send an “e-document” via the online ordering function in order to constitute an offer to the merchant for the purchase of goods or services displayed on the website. An e-document has very specific characteristics. In order to have the same legal value as a physical document, the electronic document must be able to ensure the integrity of the information it contains from the initial entry of the information and the electronic document must be accessible and usable. in its full form if necessary. The integrity of an electronic document is determined by its completeness and immutable nature. And it is ensured by one of the following methods:
- Sign the electronic document with a digital signature issued by a legal digital signature certification service provider;
- Storing the electronic document in the system of an approved electronic contract certification service provider that the parties have agreed to select;
- There is an assurance from the merchants or organizations providing the infrastructure for the creation, sending and storage of the electronic document on the integrity of the information contained in the electronic document during sending and storage in the system. ; Where
- Other measures agreed to by the parties.
It is difficult to say whether stating a preferred method in the merchant’s terms and conditions and then allowing the customer to comply with that method is sufficient to constitute an “agreement between the parties” under section 4. Technically , there is no agreement between the parties until the contract is formed, and the demonstration of this assurance is necessary to have a legally enforceable e-document and therefore the offer necessary for the formation of a contract. There are currently no guidelines on this issue. That’s life.
So assuming that the merchant’s online ordering function creates a form in which the customer can fill in their information and meet the requirements of an electronic document, then the submission of that form will become the customer’s offer to the merchant to purchase the goods. at the price indicated in the offer notice (the introductory information and the general conditions of the goods or services). Before the client submits the form, and in order to make the electronic document a binding offer, the client must be able to review, complete, modify and confirm the content of the electronic document. There are three elements to this exam:
- The name of the goods or services, their number and type, the mode and time of delivery or provision, as well as the total contract value and payment details must be displayed to the customer. This display must be able to be stored or printed by the customer;
- The display must include the mode chosen by the customer for the merchant to respond to the proposal for contractual commitment and the time limit for responding to the proposal for contractual commitment; and
- Allow the customer to cancel the transaction or confirm the contractual commitment proposal.
Once these elements are satisfied, then the electronic document can be submitted to the merchant and constitute the official and enforceable offer. Upon acceptance of the offer by the merchant according to the method specified by the customer, a contract will be formed. But how does acceptance come about?
Acceptance of the customer’s offer must be in the form specified in the customer’s electronic offer. This form will likely be specified by the merchant and automatically accepted via standard terms and conditions, so there is no need to craft a personalized response. The acceptance, however, must be in a form that can be stored, printed and displayed by the customer upon receipt. An acceptance must include the following information:
- List of all goods or services that customers have ordered, the number and price of each product and the total contract value;
- Time of delivery or service; and
- Contact details allowing the customer to inquire about the status of execution of the contract if necessary.
The merchant has a limited time to respond to the customer’s offer. If they have specified a deadline in their general conditions, this deadline will apply. If there is no time limit, the default is 12 hours. After the expiration of the period, any “acceptance” by the merchant becomes a new offer to the customer which is enforceable upon acceptance by the customer. An acceptance is deemed to be delivered upon receipt by the customer. At that time, and only then, the contract is deemed to be concluded and fully enforceable by both parties. An e-commerce contract in Vietnam will have been formed.
The method of creating a contract in e-commerce is not totally disconnected from traditional contract formation processes. This is slightly different, however, and understanding how the flow of offer and acceptance is important when preparing the terms and conditions for the merchant and in developing the electronic forms and documents that will constitute the offer and the acceptance between the customer and the merchant. If you do not understand these rules correctly when operating in e-commerce industry in Vietnam, it will be difficult to enforce e-commerce contracts in Vietnam.