Electronic Contract Council

Internet is considered one of the most important innovations developed by the human being, in the field of informatics since the end of the past decade, as it removed all the geographical borders between countries, converting the world into a small village. In accord with this context, the electronic commerce appeared and developed, and the Internet became one of the important intermediaries, through which electronic contracts are made. The electronic contract can be defined as an agreement, in which the acceptance encounter the offer, at an international open communication net, over distance through audiovisual manners, creating reaction between the offerer and the offeree,and these manners are not limited only to the Internet, but it comprises other electronic communication devices, such as Fax, Telex, Facsmail, and Telephone, as these devices through which the electronic contract is made, is one of the most important features of the electronic contract, that distinguishes it from the conventional one. Considering that the internet and its divers services, is one of the most important sidesthat give the electroniccontract its specialty,differentiating it from the conventional contract. The electronic contract belongs to a group of contract made through distance, using electronic devices without physical presence of the contractors. Because of that, its proving and fulfillment is done in special ways, different from those of the conventional contract. The validity of the electronic contract is materialized as a result of the materialization of the validity of its bases, which is the object, the cause, the satisfaction (approval) and the eligibility, which are regulated with the same frame of general principles, that regulate the conventional contract, with the particularity of these bases, as the general principles do not have the ability to expand, in order to comprise the eligibility of the contractor, as a result of the difficulty of the assurance of the identity of the contractors and their eligibility, and because of that the electronic signature and the electronic certifying bodies were created. The negotiation stage usually proceed the concluding of the contract, during this stage the suggestions and the bargaining are exchanged, and it is known as the duration before contracting, although the contract could be made without going through this stage, disagreement arisen about the nature of the responsibility as a consequence of the interruption of the negotiation, and whether it is considered as delinquency or contractual responsibility, also disagreement has been roused about the legal nature of the contract, and whether it is considered as contentment or submissiveness contract, which is determined according to the method used to conclude the contract on the Internet, as the contract made through the Internet is in general a contentment one, but those made through Email or Chatting is considered as submissiveness contract. The electronic contract is concluded by the submissiveness of its parties, the presence of the submissiveness depends on the concordant of the concurrence of wills, expressing the offer and the acceptance, using one of the expression methods considered according to the general principles,as expressing orally, by writing, signs will known traditionally and the attitude of the parties of which the situation and all the circumstances do not leave any suspicion regarding its significance, also there are special ways for expressing the will in the electronic contract concluded through Internet, from which according to the general principles we can consider, the expression using Email, websites and chatting, in which an electronic data letters could be used to express the will through the mentioned ways, in addition to other ways regulated by the general principles. The essence of the electronic offer does not differ from that of the conventional one, except in the manner used to express it. The importance of distinguishing between the offer and the invitation to treat, is the possibility of regression of the offer, as the engagement of the acceptance with the offer lead to the conclusion of the contract, so the offerer will not be able to regress his offer, while in the case of the invitation to treat, the offerer has the right to regress his offer despite the engagement of the acceptance with the offer. There are several requirements of the electronic contract, among these: it should be clear and directed to a concrete person or persons, decisive and exactly defined. In the same manner that the general principles applied on the electronic offer, it is also applied on the electronic acceptance, there are special ways of the electronic acceptance, in accordance with the nature of the electronic contract concluded through Internet. The expression of the acceptance could be explicit or implicit, but the silence is not considered as an acceptance, except in exceptional cases, although this assumption is difficult to be applied on the contract made through Internet. The Egyptian and the Jordanian legislator of the civil law, adopted the same approach as Islamic jurisprudence regarding the contract council, as it gave the offeree a rational period of time in order to express his acceptation, without slackness that lead to harm the offerer, the importance of the contract council exists in the determination of place and time of conclusion, in addition to the type of law that should be applied, and the court that has the jurisdiction in the case of disagreement regarding the contract. There are two types of contract council, a true one and a propositional one, in the case of the true one, the contractors are meeting in the same place contacting and hearing each other directly, and they should not be diverted by something else other than the contractual matter, the council begins with an offer and end with acceptance or rejection, or dissolved with out response, while the council is considered a propositional council, if one of contactors is absent, and it is usually the case of electronic council. The time parameter is considered the appropriate and the most flexible, in order to distinguish between these two types of contracting, because this parameter is able to follow the real development of the modern communication media, according to this parameter, the contract council when using the telephone and the similar devices, is considered in general as contracting between absents with respect to the place, andattendant with respect to the time, also the contract council using the fax and similar devices, is considered as contracting between absents regarding both place and time, however with respect to contracting using Internet, the state differs according to the way of the contract conclusion, as the contracting using Email, usually considered as contracting between absents regarding both place and time, except in the case of direct connection using Email with out time gap between the issuance of the acceptance, and the awareness of the offere, in the case of contracting using the web page, the contracting is considered as contracting between absents regarding both place and time, although in the case of contracting using direct chatting with vision through camera, the contracting considered as contracting between attendant regarding both place and time, and if only writing is used in chatting, without time gap between sending the letter and the awareness of the other part, in order to respond with immediate letter or oral communication, then the contracting is considered as contracting between attendant regarding time and absent regarding place, although in the case of the presence of time gap between the issuance and awareness of the letter in order to respond to it, then the contracting is considered as contracting between absents regarding both time and place, this ultimate case is the one that could be applied on sending SMS using mobile. As a result of the challenged appeared regarding the determination of the time and place of contract council, legal and jurisprudence solutions appeared in order to resolve this issue, as it is the most important problem facing contracting between absents. These solutions were represented in the unilateral and bilateral theory, the unilateral theory does not separate between time and place of the contract council, from which we can mention the announcement of acceptance theory, theexpedition of acceptance theory, receiving the acceptance theory, and theawareness of acceptance theory, while the bilateral theories does not bind between time and place of contract council, these theories are represented by the Malory and Chevalier theories.