General introduction

The very rapid emergence of industrialization globalization and technicalities

formed a great basic for the growth of technology and the rise of the computer age.
Thus read to the development of E-commerce as one of the product seeing that it
is a major economic development. Introduction of internet in our society charge
our own style in the issue of the contact. Internet became a great deal of impact on
business that why lead to the birth of E-commerce. That includes the E-contract.

E-commerce refers to the way of conduct commerce in totality using the internet
as medium or according to1 the conducting of transactions using network of
computer and telecommunication such as internet.

Summaries of paper (Adam J mambi)

1
H,Goels (2012) law and Emerging Technology Cyber law,
In his book of ICT law, tried to explain about E-contract in Tanzania and
international at all and based on the challenges that occur in E-contarct at all as the
results of the development of internate.

E-CONTRACT IN TANZANIA.
1.0 GENERAL INTRODUCTION

Before development of internet in Tanzania contract has been done traditionary

without using internet. Contract is an agreement between two or more sides that
enforceable by law, but according to law of Contract 2 define Contract as “any
agreement enforceable by law is a contract. But the question came how can it be
enforceable? For a valid contract to be enforceable it has to meet all requirement
that make it to be a valid contract as you’re looking in section 10 of the law of
contract Act, tried to show some element for a contract to be valid or enforceable
by law

“all agreement are contract if they made by free consent of parties

competent to contract, for a lawful consideration and with a lawfully object and
are not here by expressed declared void”

If one read this section we see there are element for valid contract, for any contract
to be valid should contain that element. Contract has got main two parties which
are promisor and promisee according to3

“The person making the proposal is called the promisor and the person
accepting is called the promisee”

Unfortunately Laws which govern contract are mostly affected in this development
of technology through the using of computer and use of E-commerce

But undoubtedly the development of digital technology

, for instance the uses of electronic communication using computers represent a

major challenge and opportunity in this respect. In this area problem are greater in

2
S.2 Cap 345( R.E 2002)
3
Section 2 (1) c of law of contract ACT, Cap345( R.E 2002)
connection with the legal requirement for writing and handwritten signature than in
relation to offer and acceptance4

1.1.1 INTRODUCTION AND DEFINITION OF E-CONTRACT

4
K, Smith and keens (2006) law for business 13th edition page 85
Since the development of digital technology people came to contract each other by
means of electronic therefore definition of E-contract means

E-contract is kind of contract formed in course of e-commerce by interaction of

two or more individuals using electronic means such as E-mail, the interaction of
un individual with an electronic agent such as computer program or the interaction
of at least two electronic agent that are programmed to recognized the existence of
a contract5

E-contract is the contract modeled, specified executed and development by a

software system, also e-contract has got two parties originator and addressee where
by originator is personal who sent, generate, stores, or transmit any electronic
message to be sent, generate, stored or transmitted to any other person and does
not include an intermediary. An addressee is the person who is intended by the
originator to receive the electronic record but does not include intermediary.

This theory can be seen in the case of Adam vs. lindsell6 “on the 2nd of September
1817 the defendant wrote to the plaintiff offering a quantity of wool on certain
term and requiring an answer in course of post. The defendant misdirected their
latter which did not reach the plaintiff until the evening 5th September that same
night the plaintiff post a latter of acceptance which was delivered to the defendant
on 9th September, the court said that where acceptance is communication by post a
contract arises on the date which acceptance is posted in due course.

The posting rule was consolidate in Hentborn vs. Frasert7 in the former case the
court pointed out that a contract is complete on posting the letter of acceptance
even though the latter may not reach to the offeror .In this case lord Herschell
5
Http;//searchcio. Techtarget.com / definition/e-commerce on 04/12/2019
6
(1818)I.B $ A rd . 681
7
[1892]2Ch.27
define the determination of the time and space under the E-commerce contract
which rise the problem to recognize the space, time, and boundaries8.

According to Adam J. Mambi in his book of ICT law he says ‘reference can be
made to the various case laws and cyber law from other countries. for instance the
following provision from South Africa law might be useful;

2(1) An agreement is not without legal force and effect merely because it was
concluded partly or in whole by means of data message.

(2) An agreement concluded between parties by means of data message is

concluded at the time when and place where the acceptance of the offer was
received by the offeror.

2.0.1NATURE OF E-CONTRACT

As it is in the T.C also E-contract has got its own nature as explain as follow;

8
N.N.N.Nditi (2015) contract in East Africa, page 42
 <The parties do not in mostly cases meet physical unlike to normal contract
whereby all parties that enter to the contract must see each other physically
but comes electronically it is not easy to see the originator of that contract,
parties what they do is to communicate by internet only.
<There are three main method of contracting used i.e. e-mail, World Wide
Web (www), and cyber contracts (click to agree online contract).
<In E-contract the subject matter include;
(a) Physical goods, where goods are ordered online paid over internet and
physical delivery is made.
(b)Digitized products such as software which can also be order .
(c)Services like electronic banking, sale of shares financial advice.

3.0. ELEMENT OF E-CONTRACT

Generally the law already recognizes the E-contract formed using facsimile,
telex, and other similar technology. As in T.C got its own element of valid
contract also E-contract has its own elements to be valid. An agreement
between parties is legally valid if it satisfied the requirement of the law
regarding its formation. This can be evidence by offer, acceptance and
consideration.
3.0.1. OFFER
Under the9 ‘When one person signifies to another his willingness to do or to
abstain from doing anything, with a view to obtaining the assent of that other
to such act or abstinence, he is said to make proposal”

9
S.2(1) (a) law of contract Act CAP 345 [R.E 2002]
 So take an example of advertisement on website may or not constitute to an
offer? Or can it be invitational to treat? Being an offer to unspecified person
it is probably an invitation to treat, unless a contrary intention is clearly
expressed. When consumer respond through an e-mail or by filling in an
online form built into the web page they make an offer. So the seller can
accept this offer either by express or by conducts.
It is clear that a message can enter into a person mailbox without him seeing
it, thus the element necessary for deterring communication of offer in case of
posting cannot be the same in electronic communication. Thus
communication of offer is complete when it comes to the knowledge of the
offeree and acknowledgement is received by him10

3.0.2. ACCEPTANCE
Under the rule acceptance of a contract is said to occur at the time the
acceptance is posted. Hence the communication of acceptance is complete
against the proposer when it is put in the course of transmission to him and
against the acceptor when it comes to the knowledge of the proposer, that is
when the acknowledgement enters into the designated computer resource but
this concept has no disparity between Indian and common law as seen in the
case of Lalman shukla vs. Gaurie Datta Sharma11 ‘Whereby the fact of the
case is that, he is announce for the lost of his boy where in spite of the fact
that he found the boy whose under had promised Rs.501 to anyone who finds
was denied the reward seeing that he come to know only after finding a boy.
The court held that both offer and acceptance can be generally done through
e-mail, website forms and online agreement”
10
C.Leith (2014) electronic contract 4th edition

11
(1913) M.L.J 489
3.0.3. CONSIDERATION
Like in traditional contract also in E-contract consideration is very necessary.
According to the Indian contract Act of 1872 ‘in the present scenario once an
item has been supplied the price has been paid, the consideration is executed
and the requirement is satisfied. Problem may arise at the time when the
consideration is merely executor” this arises when the seller’s computer has
done no more than promise, to supply than item.

4.0. CHALLENGES OF E-CONTRACT

Unlike to the T.C in E-contract things could be complicated when
communication taking into account that an e-mail message does not show a
signal on its arrival. This challenges can be categories as follows;

4.0.1. Signature
Unlike the traditional contract whereby it require a handwritten signature of
both parties and their witness. According to Adam J, in his book of ICT law
he says that ‘the definition of writing and signature under the current laws
does not involve data message in addition to that it is impossible for both
parties entering into contract to use other parties to witness their transition
under cyberspace”
 This is found in12 ‘a contract for the sale of any goods shall not be
enforceable by action unless the buyer accepts part of the goods so sold…”
the legal requirements of offline law presuppose legal problem on cyber
space in Tanzania.

4.0.2. Age
Many people inter into E-contract without known the capacity of that person.
In E-contract it is not easy to determine what is the age of that person that
you enter into contract with. The challenges here are how to avoid dealing
electronically with minors who are not legally eligible to make a contract.

4.0.3 Privity
This is also the challenge facing E-contarct. Here we look to the service
provider who actually creat that contract has the relation which subsist
between two contracting parties. The issue here in E-contarct how can we
determine the issue of Privity in electrical means? Compered to traditional
contract. Because contract is done electronically.
4.0.4 Free Will
This is mutual intention to enter into contract.whereby parties has to agree
themselve willing to that contact, as the matter here in E-contarct it's not easy
to know if person is willing to make that contract or not. This is the mostly
challenge because what if that person agreed mistaken and the contract send
it's self automatically? How can we prove that it is intention or accidentally?
DETERMINATION OF JURISDICTION

12
S 9, the sales of good Act, CAP 214 [R. E 2002]
Some relevant provition of UNCITRAL try to explain the issue of
jurisdiction in common countries concerning the issue of E-contarct. But in
Tanzania the law doesn't show how this will be deal in the court as the issue
of the breach of contract. But according to the Adam J. He says that the legal
position in India which is paramateria with Tanzania is to the effect that the
communication of an offer is completely when it comes to the knowledge of
the person to whom it is made.

5.0. CRITICAL REVIEW

According to Adam J. in his paper he discus E-contract into two positions in
Tanzania and common law countries.

IN TANZANIA
The position in India and Tanzania which is paramateria with Tanzania is to
the effect that the communication of an offer is complete when it comes to
the knowledge of the person to whom it is made.

IN COMMON COUNTRIES
He tries to explain position of E-contract in common countries like Australia,
Malta, Singapore and South Africa. He explain about the determination of
jurisdiction, time and place of formation and performance of E-contracts at
International level, position at regional and national level, and also in
international level.
CONCLUTION
As we see in both position of E-contract in Tanzania and Common countries.
The E-contract the whole question of this is that attribution,
acknowledgement and dispatch of electronic records, receipt, time and place
of dispatch .
RECOMMENDATION
In E-contract what the most things to consider is to avoid the challenges like
the issue of the age,privity, free will and signature.foristance the issues of age
which is very sensitive parties have to know each other either they deserve
to enter into contract or not but the issue of the minor to the contract will be
very important because the law itself does not recognize the minor lather than
for exception of necessity out of that this contract will be voidable. So the
law shall consider the development of technology which leads to the
development of electronic means and E-commerce, as it is in the traditional
contract . Therefore the law maker should d consider the new ammendimate
of the contract law that can express deeply in this challenges and jurisdiction.
BIBLIOGRAPHY
BOOKS
Cavell, l(2014) electronic contract ,Aspen publisher,UK
Vasudha,T &Pratibha Pal (2006) E-contract and legality, legal service
publisher, India
Smith &keens (2006) law of business 13th ed, oxford university press. Oxford
Nditi ,N,N (2015) contract of East Africa,Dar es salaam university press. Dar
es Salaam.
Turban ,E (2002) electronic commerce , sweet and Maxwell publisher.london
Leith ,C(2014) electronic contract, Aspen publisher. UK
Goels , H(2012) law and emerging technology cyber law.southern publisher.
London
Internate
http://searchcio.techtarget.com
http://m.grin.com
cases
Adam vs. linsell (1818)L.B .681
Lalman shulka vs. Gaurie Datta (1913) M.L.J. 489
Hentborn vs. Fraser(1892) 2 Ch.27

Statutes
Sales of goods Act CAP 214 [R.E 2002]
The law of contract Act CAP 345 [R.E 2002]
The Indian contract Act of 1872

LIST OF ABBRIVIATION
TC…………………….Traditional contract
CAP………………..chapter
R E…………….Revised adition
E-contarct....... Electronic contract
E-commerce.... Electronic commercial
UK........ United kingdom
Abstract
In this work there is general introduction about contract, definition of E-
contract, element of E-contracts and challenges of E-contract. This has come
after the development of tecknowledge that leads to the effect of tradition
contract and lead to the emergence of the E-commerce whereby in this matter
lead to the development of E-contract though it contain a lot of challenges