Contracting and Digital Signature

Hong Kong

The basic legal principles regarding the formation of electronic contracts continue to be the same. That is, they are based on notions of offer, acceptance, and consideration. Sections 17, 18 and 19 of the Electronic Transaction Ordinance (see Appendix 4) apply in conjunction with the contracting legal principles. Section 17 of the Ordinance states that an offer and acceptance may be expressed in whole or in part by electronic records. Section 18 provides that in the absence of agreement should not affect the formation of contracts. This section appears to suggest that computers can be construed as the originator and, therefore, have the requisite intention to form a contract. An enforceable contract will be formed by a valid online method. Section 19 outlines the provisions as to the time when an electronic record is deemed to have been made. An electronic record is deemed to have been sent when accepted by "an information system" outside the control of the originator; receipt is deemed to have occurred at the time when the electronic record is accepted by the "designated information system". If the electronic record is not sent to the "designated information system", receipt is deemed to have occurred at the time the electronic record "comes to the knowledge of the addressee".

Previously, contracts in digital form would be considered to be "in writing" because of Hong Kong's Interpretation Ordinance, which includes "typing, printing, lithography, photographs and other modes of representing or reproducing words in a visible form" in the definition of "writing" (Tam, n.d.). With the advent of the Ordinance, electronic records are now accorded the same legal recognition as their paper-based counterparts. The Ordinance stipulates that:

• where a rule of law requires or permits information to be given or presented in writing, the use of electronic records will satisfy that rule of law;
• where a rule of law requires information to be retained, or to be presented or retained in the original form, that requirement is met by retaining or presenting the information in the form of electronic records
• contracts shall not be denied legal effect solely on the ground that electronic records are used in their formation; and
• electronic records shall not be denied admissibility as evidence in court on the sole ground that they are electronic records.