As a result of the rapid development of technology and its integration in all fields of our lives, legal relations have started to be carried out through electronic channels. In this context, as being one of the most important elements of the legal relationships, contracts, have been drawing up and executed by electronic means and the concept of "electronic contract" has entered into our lives.
Electronic contracts are defined as the contracts that are established in electronic environment using internet tools. These contracts do not create a new category of contracts, but only state the contracts that are established through electronic ways. Thus, the relevant provisions of the Turkish Code of Obligations1 ("Code") are applied to electronic contracts to the extent possible.
I. Establishment of Electronic Contracts
According to the Code, in order for a contract to be established, the mutual and consentaneous declarations of intent of the parties are required. The first of the declarations of intent to be explained is the offer of one party which contains the proposal to establish the contract and the other declaration is acceptance of the other party.
The offer may be directed to one or more people (individual offer), or it may be directed to everyone (public offer). In order for an offer to be legally valid, (i) it must contain all the essential elements of the contract, (ii) the offering person shoul intend to be bound by the offer and (iii) the offer should be directed to the other party.
The parties can explain their offer and acceptance to the other party in person or they can transmit it over various channels. In terms of electronic contracts, the declarations of parties would be expressed through electronic channels.
II. Channels for Transferring the Declaration of Intent
The parties willing to form a contract through electronic channels may express their declaration of intent to the other party through (i) websites or (ii) electronic mails.
Traders who are willing to tender their goods or services through internet are frequently forming contracts through their websites. In this context, the product or service presented for sale on the website would be an offer made for the purpose of one party for establishing the contract and the contract would be established upon the acceptance of the other party. The declaration of acceptance would be explained by clicking the "I accept" button under the general conditions announced on the web page.
Another tool used for establishment of electronic contracts is electronic mail. Just like the letters sent through post services, the messages sent by electronic mail constitute an offer for a contract and the contract can be established upon the acceptance of the other party. In this case, the declaration of acceptance would be expressed through sending an electronic mail to the offering party.
III. The Establishment Moment of Contracts
Determination of the moment of establishment of the contract differs depending on whether the contract in question is between the inter praesentes or not. According to the opinion mostly accepted in the doctrine, in a case when contract is not established inter praesentes, it would be established at the moment the declaration of acceptance reaches to the offering party.
In terms of contracts made by electronic mail, it is accepted that the contract is established at the moment the declaration of acceptance falls under the domination of the offering party. According to one opinion, the declaration of acceptance falls under the domination of the offering party at the moment when the electronic mail arrives at the server, and another opinion is that the declaration of acceptance falls under the domination of the offering party at the moment it is transferred to his/her computer.
In terms of contracts established with the acceptance of the general conditions announced on the website, the contracts are deemed to be established at the moment that the declaration of acceptance reaches to the offering party.
IV. Signing of the Contracts
Electronic contracts are signed through electronic signing methods by the parties. Although there are many types of electronic signature, the most legally secure type is digital signature since it is based on the encryption of the sent documents with a double-key encryption technique. With this system, the digital signature ensures that the identity of the person sending the electronic document is identified and enables the electronic document to reach the offering party in its original form.
In conclusion, in today's world where technology and digitalization are extremely important, it is crucial to carry out legal relations through electronic ways. Although it is not likely to carry out all legal relations through these ways, it is possible to execute contracts electronically due to its feature of being based on the will of the parties. Eventhough the electronic contracts are not legally distinct from the other contracts regulated under the Code, there are some practical differences regarding the establishment of such contracts. We wish this article, which all these issues are explained in detail, to be useful for all interested ones.
1. Turkish Code of Obligations numbered 6098 and dated January 11, 2011; published in the Official Gazette numbered 27836 and dated February 4, 2011.
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.