Just as the Black Death spread along trade routes along the backbone of eurasia in the 14th century, Covid-19 appeared in China and spread extremely quickly along the modern Silk Road: transcontining routes. The spread of Covid-19 has fundamentally changed the world situation: social distancing, travel between countries, areas in difficulty, online work gradually became popular. Since then, e-transactions have gradually come to the fore with the beginning of the explosion of e-commerce and digital currency trading. The negotiation and signing of contracts is no exception. E-contracts gradually dominate the market and with its convenience as well as guaranteed legality, this is undoubtedly the trading trend of the present and also the future.
Maybe for many people, hearing about e-contracts (or e-transactions) is new. However, as early as 2005, with the introduction of the Civil Code 2005 and especially the Law on Electronic Transactions 2005, e-contracts have been recognized in Vietnam with a clear legal framework.
Clause 1 Article 124 of the Civil Code 2005 stipulates:
Article 124. Forms of civil transactions
1. Civil transactions are expressed verbally, in writing or by specific acts.
Civil transactions through electronic means in the form of data messages are considered written transactions.
At the same time, according to the provisions of Article 33 and 34 of the Law on E-Transactions 2005:
"An e-contract is a contract established in the form of a data message."
"The legal validity of an e-contract cannot be denied simply because it is shown as a data message."
Basically, the characteristics of e-contracts can be encapsulated in the following ideas:
- Express by electronic data message: The most striking feature of the contract is the form of performance. In the conclusion of e-contracts, unless otherwise agreed by the parties, the request for conclusion of the contract and acceptance of the conclusion of the contract can be carried out through a data message. Data messages are shown in the form of electronic data exchange, electronic documents, emails, telegrams, telegrams, faxes and other similar forms (Article 10 of the Law on Electronic Transactions 2005)
- There are at least 3 participants in the conclusion of the contract: In the e-contract, in addition to the appearance of the seller and the buyer (temporarily referred to as the contracting parties), there is also the appearance of a third party who is the e-contract service provider (if any) and the e-signature certification body. This third party is not involved in the process of negotiating, entering into or performing e-contracts. They participate as support agencies to ensure the effectiveness and legal validity of the conclusion and performance of e-contracts.
- Borderless: E-contracts are a product of scientific and technological development. Since the e-contract is established as a data message, it does not require the two parties in the contract to meet to sign, but anywhere or at any time, the two parties can actively sign the contract.
- Inality, inal matter: e-contracts are built on a digital environment. E-contracts exist, as evidenced, stored by electronic data that cannot be held or felt.
The legal value of e-contracts has been recognized in most types of contracts. The Civil Code 2015 once again reaffirms the value and role of e-contracts in civil contracts:
Article 119. Forms of civil transactions
1. Civil transactions are expressed verbally, in writing or by specific acts.
Civil transactions through electronic means in the form of data messages in accordance with the law on e-transactions are considered as written transactions.
Labor law has also officially recognized the legal value of e-labor contracts. Labour Code 2019 (effective from 01/01/2021) stipulates:
Article 14. Form of labor contract
Labor contracts are concluded through electronic means in the form of data messages in accordance with the law on e-transactions as valid as written labor contracts.
The legality of e-commerce contracts has also been prescribed since the enacted Commercial Law 2005:
Article 15. Principles of recognition of the legal validity of data messages in commercial activities
In commercial activities, data messages meeting technical conditions and standards as prescribed by law shall be recognized as having legal validity equivalent to documents.
With outstanding advantages such as convenience, quickness, transparency; easy to manage, store and search; saving time and costs; e-contracts are increasingly having a foothold in the market. However, e-contracts are not without risks. Non-borderity makes determining the governing law a difficult and painful issue if the parties do not agree before this. Moreover, the existence of hackers as well as cyber attacks makes the risk of losing and exposing contract data is quite possible. The problem of fraud is also a big risk that Vietnamese businesses are still afraid to approach e-contracts. Hopefully with the arrival of Smart Contract technology is a term that describes a special set of protocols capable of automatically implementing terms and agreements between the parties in the contract (in this case, computer systems) thanks to the support of Blockchain technology) , these restrictions may be remedied in the not too distant future.