WHAT WE MUST LEARN FROM KENYA IN TERMS OF ELECTRONIC CONTRACTS

The concern of our study was to examine the legal basis for electronic contracts in Tanzania. The major problems that were being examined are; the ascertainment of e-contract terms and the other party in the contract with the focus to consent i.e. consensus ad idem requirements and capacity to contract. With the first problem, e-commerce involves e-contracts and the business community in Tanzania enters into contractual arrangements with external world via websites or email in which case the electronic environment is not suitable in Tanzania in terms of the laws and the technology. Messages sent via internet may be garbled in transmission and also determination of the time in which the message is sent or received as to ascertain offer and acceptance. On the other hand, the requirement of consent i.e. consensus ad idem in contract in electronic contract has become a challenge because in some e-agents are involved to contract. It has become a question as to whether e-agent can amount to consent of the other party to the contract. E-agents are not included in the definition of the laws in Tanzania to mean a person and hence a problem. The endeavour‟s to pursue this task were guided by the assumption that; there is a mismatch between the existing regulatory framework on one hand, and cyber contracts specifically on the issues of contract terms and consensus ad idem on the other hand. And that the existing law yet favours a traditional way of contracting i.e. paper based contracts rather than cyber contracts. We employed interview and review methods in the field as our tools to collect the data. The existing laws in Tanzania provide a general guidance to cyber contracts because there is no specific legislation to govern electronic transactions. This makes it difficult to respond sufficiently to technological changes. The contracts are generally governed by the Law of Contract Act but courts of law may extend and develop some principles where necessary, to fill the gaps.

The legal framework of electronic contracts in Mainland Tanzania., 2023

The evolution of electronic contracts, or e-contracts, has significantly transformed the landscape of contractual agreements in Tanzania. Traditionally, contracts were executed in writing and signed physically, but advancements in technology have introduced electronic means of contracting, allowing parties to enter agreements without physical interaction. However, this shift posed challenges to the existing legal framework, which initially did not explicitly address e-contracts. This paper examines the legal framework governing electronic contracts in Mainland Tanzania, focusing on the relevant legislation and amendments made to accommodate e-contracts. It discusses the Law of Contracts Act and its amendments, which now recognize electronic contracts alongside traditional paper contracts. Furthermore, it delves into the Electronic Transactions Act, which provides the foundational framework for electronic transactions, including e-contracts, e-commerce, and electronic money transfer. The analysis includes provisions such as those specifying the validity and enforceability of electronic contracts, rules for determining the location and time of contract formation in electronic transactions, and regulations governing contracts formed through interactive systems. Additionally, the paper explores amendments to the Evidence Act, which recognize electronic evidence and support its admissibility in court proceedings. While recognizing the benefits of e-contracts in terms of efficiency and convenience, the paper also highlights legal challenges associated with electronic contracting, including issues of authentication, standardization, data protection, and accessibility. It emphasizes the need for standardized regulations and improved security measures to address these challenges effectively.

""Abstract. This paper presents important issues on whether the Law of Contract of 1975, Cap .345R: E 2002, curter the needs for the Formation of Electronic Contract in Tanzania. The paper will consist of Five Parts in terms of alphabet A-E. The intent of the paper is not to provide an exhaustive treatment of the subject but a good understanding of the subject. In Part A, the attempt here is simply to familiarize the reader with a careful understanding of the Concept of Contract. Here then, the author will trace back the history of contract and law, where it was rooted. How do the ancient world defined and understand the concept of contract. What were the regulations regulate the whole concept of contract. And lastly different types of contracts. In Part B, as the fact that a studied area is Tanzania, now the concept of contract in Tanzania Legal Regime will be discussed. After the discussion of the concept of contract and the law in Tanzania Arena, the new world of contract formation that is cyber contracts will be considered in Part C, which will include the origin, meaning, elements and types of cyber contract. In Part D, it is where the issue of whether the Law of Contract of 1975, Cap .345R: E 2002, curter the needs for the Formation of Electronic Contract in Tanzania will be discussed by looking at the aspect of contract formation, validity and other essential aspects of the contract. The last part is Part E in which after considering all the facts explained in Part D, the author will have to give his assessment on the issue and provide his recommendation as to what must be done if there is any problem concerning enforceability of electronic contract and conclusion. ""

Over the last several years the Internet has emerged as an important tool to facilitate the conduct of business for consumers and businesses alike. The struggle of contract law to keep pace with technological change is not new; past technological advancements such as the telegraph machine introduced hurdles in the application of traditional contract law principles that the common law had to overcome. The Internet has introduced some uncertainty into many aspects of commercial transactions conducted via electronic means, such as in the areas of the formation of enforceable electronic contracts, jurisdiction, and statutory issues relating to evidence and signature requirements. A number of countries around the world including Nigeria have introduced legislation that enables an electronic or digital signature in order to satisfy legal formalities that require a signature to be provided in an electronic transaction or a document. The development of electronic commerce has generally given rise to different movements in relation to law reform. On the growth of e-Commerce in the Nigerian community, many steps have been taken for its promotion, but there are still lots to be done to make it operate well in the country. Hence this article takes a critical look at some of the laws regulating Electronic contracts in Nigeria and will conclude with the need to improve especially in the area of the enforcement of electronic contracts.

SSRN Electronic Journal, 2018

The aim of writing this paper is show how this new piece of legislation have provide for the protection of electronic contracts in Tanzania. The development of science and technology has turned almost everything we know and see upside down in terms of business activities and other activities that we know. This is simply because know a matter or business activity can be done in a slightly touch or click of your computer through a mouse, and then the job or deal is done! This pose a critical problem when it comes to the legal perspective as most of the laws that we have in most of developing countries particularly Tanzania are not sufficient enough to regulate these activities when they are applied unenthusiastically. In my paper named, “Electronic Contracts in Tanzania: A Detailed Discussion on the Formation of Electronic Contract in Digital Age”, I wrote about how the law governing contracts in Tanzania (Cap.345, [R.E.2002]) did not recognize electronic contract, even though there have been a lot of contracts contracted online. This was before the enactment of Electronic Transaction Act. No.13 of 2015. An assessment of the law has been made, and a discussion on the recognition of electronic agent which to my view, the Act did not provide a clear meaning of it, in which it may cause some ambiguity and confusion in the future.

J. Inf. Law Technol., 2008

1. Introduction 1.1. South African Lex Informatica The Lex Informatica or as otherwise referred to as Cyber law is not a traditional source of law but rather a new hybrid-law encompassing various pieces of old and new telecommunications legislation as well as the Common law. One must also note the supremacy of the Constitution. The Constitution of the Republic of South Africa as entrenched in the supremacy clause in section 2 states that, The Constitution is the Supreme Law of the Republic. Law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled (De Waal & Currie, 1998, p 7). It furthermore states that international law must be considered and foreign law may be considered in the interpretation of South African Law. The general principles of the South African Common Law are of importance and are binding--specifically the Law of contract. Since the South African Lex Informatica has emerged as a new discipline in the legal field, one must take...

The aim of writing this paper is show how this new piece of legislation have provide for the protection of electronic contracts in Tanzania. The development of science and technology has turned almost everything we know and see upside down in terms of business activities and other activities that we know. This is simply because know a matter or business activity can be done in a slightly touch or click of your computer through a mouse, and then the job or deal is done! This pose a critical problem when it comes to the legal perspective as most of the laws that we have in most of developing countries particularly Tanzania are not sufficient enough to regulate these activities when they are applied unenthusiastically. In my paper named, “Electronic Contracts in Tanzania: A Detailed Discussion on the Formation of Electronic Contract in Digital Age”, I wrote about how the law governing contracts in Tanzania (Cap.345, [R.E.2002]) did not recognize electronic contract, even though there have been a lot of contracts contracted online. This was before the enactment of Electronic Transactions Act. No.13 of 2015. An assessment of the law has been made, and a discussion on the recognition of electronic agent which to my view, the Act did not provide a clear meaning of it, in which it may cause some ambiguity and confusion in the future.

2015

It is an undeniable fact that the new millennia is the era of technology, and that it has influenced and continues to influence the mechanics of our daily lives. The "IT boom" and the effects thereof have also had an undisputable influence on the legal realm. The continuous development of technology had seemed to outpace the rigorous traditional legal landscape and as the use of digital media in commerce increased, questions with regards to the legal validity thereof arose. In the absence of guiding legislation, the position on e-commerce within the ambit of South African law was ambiguous, and courts had to rely on the common law principles to settle disputes of this complex nature. However, as time wore on it became evident that the common law fell well short to address some of the contentious aspects raised by these new developments. In light thereof the South African legislators promulgated the Electronic Communications and Transactions Act6 in 2002 (hereinafter the ECTA or the Act). The rudimentary principle of the ECTA embodies the idea that digital transactions- and communications are no less binding than its paper twin, giving digital signatures and data messages the same equivalence as traditional written documents signed with a pen and ink. Although legislators had tried, through the inception of the ECTA, to address the lacunas in the law caused by technology, the application of the Act pertaining to the everyday use of digital platforms in commerce, were in many ways still a grey area. However in CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal kitchens Steyn J took notice of the drastic changes in technology and held that it is not unreasonable to expect the law, together with the judiciary to pay heed to- and accommodate these changes. The recent judgement by the SCA in the matter of Spring Forest Trading v Wilberry, can be seen as doing just that when it ruled on whether or not an email exchange could constitute a written and signed cancellation of a contract, as envisioned by the given non-variation clause. As e- commerce has evolved into the status quo, this dissertation will attempt to determine the legal impact of the Spring Forest Trading v Wilberry judgement, especially concerning the use of digital media pertaining to contracting, within the ambit of the ECTA. Put differently, this dissertation is especially concerned with the implications of the ECTA on the traditional "in writing" and "signature" requirements, in circumstances where contracting parties make use of electronic communications. The answering of this question is relevant and important, as e-commerce is a rising trend with regards to the negotiation, communication and conclusion of contracts which forms an integral part of not only an elite group, but the general populace.