ELECTRONIC CONTRACTS 3 September 2020

Legal Nature of the Electronic Contracts

Nowadays, the volume of electronic commerce is increasing gradually within the scope of the increase in internet use and the measures taken recently due to the epidemic. At this point, the parties are able to fulfill a significant part of the activities they carry out to meet their demands, either within the scope of internet banking, through e-government platforms or via the internet through electronic commerce.

Today, when it comes to electronic contracts, all kinds of contracts concluded through the internet come to mind. In this context, internet is a means used during the establishment of the contract, and the nature of the contract should be evaluated separately within the scope of the provisions.

Accordingly, the arrangement of a contract electronically will not make a difference in the legal nature of this contract.

On the other hand, although electronic contracts are generally evaluated in the same way as distance contracts, there are differences between these contracts within the scope of doctrine discussions.

Legal Validity of the Electronic Contracts

As it is known, there is the principle of contract liberty in our law. Accordingly, the contract is deemed to have been established if the offer and acceptance will compatible. It is not necessary to make a written contract in any case, also it is possible to establish contracts verbally.

If the contract is made in writing, the signatures of the parties are required. According to Article 15 of the Code of Obligations, signature must be handwritten. On the other hand, with the increase of technological advances and the widespread use of the internet, regulations have been introduced regarding the signing of contracts in electronic media.

At this point, the provision that a secure electronic signature will have the same legal effect as a handwritten signature has been added. Accordingly, a signature signed with a secure electronic signature is not different from a signature made physically. At this point, it is also possible to arrange a contract that must be prepared in writing according to the law, in electronic form via electronic signature.

Applicable Law

If a valid electronic contract is established, when determining the law to be applied in the disputes that will arise, first of all, the procedure decided by the parties should be considered.

At this point, the dispute resolution method agreed by the parties will be applied, provided that it does not violate the mandatory provisions. If no path has been determined by the parties, it will be necessary to determine the legislation to which the contract is subject, depending on the nature of the contract.

As can be seen, the fact that the contracts have been created electronically does not change the nature of the contract. While determining the law to be applied in case of dispute, it is necessary to make an assessment within the scope of the provisions of the contract.

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