| Summary: | The subject of contract formation is a fundamental component of the law of
contract as all aspects of contractual performance are dependent on a
contract being properly formed. The purpose of this Thesis is to examine how
the novelties introduced by the Internet and other electronic media like
Electronic Data Interchange (EDI) and electronic mails affect the existing legal
principles concerning formation of contracts under the law of Malaysia. This
Thesis argues that the existing law in Malaysia governing the formation of
contracts is fraught with uncertainty when applied to the Internet and other
electronic media. This Thesis submits that these lacunae in the law adversely
affect the growth of electronic commerce in Malaysia and Parliament must
take the initiative to speedily enact new statutory provisions to address the
shortcomings identified in order to introduce more certainty into the law for the
benefit of the business and legal communities.
This Thesis deals with the interaction of the electronic media with five aspects
of contract formation, namely, the contractual capacity of sophisticated
computers (in Chapter 2), the doctrine of offer and acceptance (in Chapter 3),
the contractual incapacity of minors and persons of unsound mind (in Chapter
4 ), the requirement of writing for the purpose of contract formation (in Chapter
5) and the requirement of signature for the purpose of contract formation (also
in Chapter 5). In addition to the foregoing , this Thesis argues against the
abandonment of the existing proper law doctrine for ascertaining the law
governing the formation of Internet based contracts, and asserts that lawyers
and academics have sometimes exaggerated the difficulties of ascertaining
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the governing law of an Internet based contract (in Chapter 6). For
comparative purposes, this Thesis examines the statutes and other regulatory
directives introduced in a number of Commonwealth nations and also nations
with advanced electronic commerce economy (namely, Singapore, the United
States, Hong Kong, the European Union and Australia) dealing with electronic
commerce generally, and electronic contracts specifically (in Chapter 7). In
addition to being the concluding chapter, Chapter 8 of this Thesis also
discusses if electronic contracts and electronic commerce generally should
best be regulated by statutory intervention, case law development or selfregulation.
Throughout this Thesis, a lot of attention is directed to the provisions found
under the UNCITRAL Model Law of Electronic Commerce 1996, a copy
whereof is reproduced in the Appendix of this Thesis for ease of reference.
Although the UNCITRAL Model Law is an excellent precedent of provisions
concerning electronic contracts and electronic commerce, this Thesis cautions
against rigidly replicating these model provisions without fully comprehending
the unique requirements of Malaysia.
The law as contained in this Thesis is that as of August 2003 .
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