Peru: Peruvian Legal Frame Regarding Electronic Contracts

Last Updated: 2 October 2001
Article by Eduardo Barboza Beraun

In recent years, electronic commerce ("e-commerce") conducted via the Internet has become the fastest and most cost efficient means of communication. In fact, the influence of technology in society is now reflected across virtually all commercial sectors in all industrialized countries. Companies have been taking advantage of this technological revolution to create more efficient ways of doing business, including more efficient ways of negotiating commercial transactions. Such opportunities pose legal challenges, however. If electronic transactions are not regulated adequately, there is a risk of uncertainty and a possibility of disputes between contracting parties. The increasing number of people who act through electronic markets have created a need for adequate regulation so that private parties can rely on the enforcement of contracts that are actually consummated by way of electronic commerce.

Peru has now joined an important trend supporting the recognition of commercial transactions that are closed by way of the Internet. In this scenario, legislators have been updating some aspects of Peruvian regulations for application to electronic commerce. The general legal framework for contracts in Peru is set forth in the 1984 Civil Code (the "Civil Code") at Book VII, First Section. Article 1353 of the Civil Code governs all private contracts. As a result, electronic contracts (contracts completed electronically) must follow those general provisions.

However, many doubts were raised regarding the capacity of electronic means to express the manifestation of willingness to enter into a contract (offer and acceptance) and being enough to comply with some special cases where the law asks for formality (such as a public deed) in order to execute a contract. Fortunately, Law N° 27291, published on June 24, 2000, modified article 141 of the Civil Code, providing that manifestation of willingness can be expressed by electronic means and such means would be enough to comply with formalities required by law for the formation of some contracts.

Also, said law modified article 1374 of the Civil Code, which provides the rule for the formation of contracts. Contrary to the American dispatch rule or mail box rule, article 1374 sets forth a reception rule, whereby a contract is formed only when notice of acceptance is received by the offeror. According to this rule, knowledge of acceptance is presumed with its reception. Law N° 27291 modified this rule by adding that if the communications were made by electronic means, it would be presumed the reception of the contractual communication (offer, acceptance, counteroffer, etc) when the sender receives the corresponding confirmation or acknowledgement of receipt ("acuse de recibo"). Bear in mind, this rule is only a presumption. As indicated above, a contract will be formed as soon as the offeror receives the acceptance of the offeree. In consequence, if it is possible, electronic contracts may be proved by other means, without requiring the acknowledgment of receipt.

In addition to changes to general contract law provisions, the Peruvian Congress has considered three specific laws dealing with electronic commerce, two of which have been adopted already.

First, on May 28, 2000, the Congress approved by Law N° 27269 regulating the use of electronic signatures. Such a signature consists of an encrypted block of characters identified with a specific person or an artificial entity. This law sets forth a certification process which gives to the electronic signature the same legal weight as a handwritten one. Consequently, it ensures the authenticity of a document and makes it irrevocable. In addition, said law proposes a certification authority (kind of a electronic notary) for certifying the encoded signatures.

Second, on July 17, 2000, the Congress approved Law N° 27309 regarding computer crime. This law points out that the use or enter without authorization into a database, computer system or network to design, perform, or alter a system or other similar, or to interfere, access or copy information shall be punished with a sentence of up to two years in prison or 52 to 104 hours of community services. If the agent acts with the purpose of obtaining an economic benefit, it will be punished with a sentence of up to three years in prison or not less than 104 hours of community services. If the agent uses, interferes with or enters without authorization into a database, computer system or network to alter, damage or destroy computer files, such agent shall be punished with a sentence between three and five years in prison and seventy to ninety fine-days. In such cases, the punishment will be between five and seven years in prison if the agent enters into a database, computer system or network through insider information or endangers the national security.

The third proposed law, Project N° 5010, is still pending before the Congress. It provides a specific legal framework for electronic contracts following the UNCITRAL Model Law on Electronic Commerce. Specifically, it makes an agreement transmitted and signed electronically as binding as a printed contract, making electronic storage a valid mean of storing documents. Notwithstanding this proposal, electronic transactions are already regulated by the Civil Code and the special laws mentioned above. In addition, the Code of Civil Procedures recognizes electronic means as a type of documents which are kind of proofs permitted by article 234 of said code.

In short, Peruvian law now facilitates the execution of contracts through electronic means. Parties should be able to rely on these provisions to consummate transactions through electronic means with confidence that such agreements are enforceable under law.

'The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.'

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