The advancement in the modern technology today has come with several features which brought changes to how people work, consume, play and interact. In fact, technological advancement has come with several changes which make life easier, by performing various tasks which are complex effectively. It also helps in performing tasks which ought to be done manually and does it timely and efficiently.
Despite its importance, the rapid development of information technology has caused incursion to the existing laws making them unsuitable for the changing need of the environment. The effect of technology on various laws such as data privacy, criminal law, tort, law of contract amongst other has called for change, as such laws could not meet up with the incursion of technology.
Taking law of contract as a case study, the existing laws were enacted to suit all contracts done physically by underlying the facts that some contracts are now done virtually. In fact, with technological innovations, some contracts are being executed virtually without any form of contact between the parties physically.
The writer’s intention is to critically examine the law that need to be changed with the incursion of technology and why such law should be change.
- AN AREA OF LAW AFFECTED DUE TO TECHNOLOGICAL INCURSION
One of the areas of law that is affected due to technological incursion is law of contact.
A contract is an agreement between private parties creating mutual obligations enforceable by law. It can also be defined as a set of promise which the law will enforce.
The basic elements required for the agreement to be a legally enforceable contract are: mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality. Law of contract are various laws which regulate contract disputes whenever it arises.
With the technological incursion, contracts are now done virtually bringing about the need to change laws to resolve contractual disputes. Law is not a static body of inflexible rules and unyielding tradition.
The dynamism of contemporary economic, cultural, and technological evolution requires the law to adapt itself to modern demands. Attempts to graft archaic legal systems onto ever-changing circumstances result in a struggle to conform novel issues into an out-dated legal framework.
Currently, courts and the legislature are facing issues raised by business conducted over the Internet. Failing to blanket current developments, old laws leaves new problems exposed for litigation and requires attorneys and judges to explore uncharted seas of legal complexity.
Although the continued application of traditional laws that are unresponsive to changes in the underlying society may promote injustice, a judicial activism that randomly develops “new law” to remedy inadequacies is equally deficient. When confronted with modern problems left unaddressed by existing law, a “rapid solution” is to create novel law to fit the situation.
A substantial body of laws and regulations known as contract law governs the creation and enforcement of contracts. Stating the fundamental principle in basic terms, a contract is nothing more than “a promise or [a] set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Formation of a legally recognized contract requires an offer, acceptance, and consideration.
Additionally, rules addressing specific issues of formation and enforcement supplement the basic definition. Depending on the nature of the agreement, some contracts are subject to specialized sections of contract law that cater to the particular requirements of particular negotiating situations.
An important subset exists for commercial contracts. Beyond some court interpretations under general contract law, contracts for the sale of goods receive unique treatment to promote commercial certainty, predictability, and uniformity.
The most prominent example of this “specialized” legislation for contracts is Article 2 of the Uniform Business Code (U.C.C. ), which expands basic contract law to handle concerns crucial to the formulation and enforcement of specific commercial agreements, particularly the sale of goods. Outside the domestic arena, the United Nations Convention on Contracts for the International Sale of Goods may apply to the sale of goods among international parties.
The most recent addition to the assortment of specialist contract law is the UCITA, which deals with transaction agreements for the sharing of computer information. The applicability of traditional law to electronic contracts may appear flimsy given the breadth of contract law, which can address a limitless number of different types of agreements and connections.
After all, participants to an electronic contract appear to behave and anticipate that others will behave in the same way they have under conventional laws. But this oversimplified strategy makes the critical mistake of assuming that electronic contracts always conform to the conventional framework that governs general contract law.
Electronic contracts might never be written down, might entail instantaneous exchanges, might include little to no discussion or negotiation, might even involve no human contact at all.
Electronic contracts may never appear on a piece of paper, may involve instantaneous transactions, may involve minimal or no negotiation or interaction, and may involve no human interaction at all.
Electronic contracts may be quick, inhumane transactions, far from the idea of genteel businessmen gathering together to negotiate with caution and deliberation . Having identified the problem, the solution must seek to shape the law to fit the circumstances.
- REASONS WHY LAW OF CONTRACT SHOULD BE CHANGED DUE TO TECHNOLOGICAL INCURSION
The need to change various laws due to technological incursion cannot be overemphasised. In order to abreast with the changes in technology, the laws has to change to suit the technological advancement.
In a contract law, the laws governing contractual agreements needs serious changes due to the fact that contracts can be done virtually and the law’s which are applicable to the traditional contract might not suit electronic contract.
The need for changes in law of contract due to technological incursion has been triggered by the following;
1. Mutual Assent: Mutual assent consists of an offer by one party and an acceptance of that offer by another. Generally, failing to satisfy a “meeting of the minds” on the terms and content of an agreement means that no contract arises.
Contract law liberalizes this fundamental requirement, however, through a set of rules and interpretations to determine when an offer is made and when a manifestation of assent is present. Although no formalities are required for making an offer, recognition of an acceptance requires additional rigor in order to rise to the level of mutual assent.
While this manifestation of assent may arise by written document, spoken word, or other conduct, a valid contract exists if the manifestation demonstrates that a party intended to accept the terms of the offer by exchanging promises or performance.
2. While not all electronically formed contracts demand legal inquiry into the existence of mutual assent, “point-and-click” contracts and EDI transactions present their distinct characteristics.
3. Formalities and Interpretation: Given that the liberalized concept of mutual assent may support the finding of an electronic contract, the next hurdle to overcome is determining whether an electronic contract is otherwise enforceable and, if so, how to determine its legal effect.
Principally, these concerns focus upon compliance with contract formalities and rules of interpretation. Absent a coherent framework for enforcement of electronic agreements, predictability and commercial practicality suffer.
Although general contract law and the U.C.C. have developed bright-line rules to address these issues, the electronic medium undercuts several basic assumptions that structure established rules.
Whether a string of electronic bits stored in the memory cache of a laptop satisfies the writing requirement of the Statute of Frauds – or whether instantaneous messaging obviates the mailbox rule for delivery of acceptances – are issues that infect the core purpose of traditional contract formalities. While parties may assent to create electronic contracts, the enforcement and interpretation of these agreements as valid contracts is an equally vital concern for business.
The following discussion centres upon several key concepts, including the Statute of Frauds, delivery of communications, the parole evidence rule, and consideration.
Following the initial decision to adapt existing contract law to the electronic medium, the writer’s development of issues traces a path that attempts to retain the traditional concepts, yielding to innovation only when technology has rendered these concepts obsolete.
In order to meet up with the changing need of the society, laws that relates to contractual transaction should be changed. This is to meet up with the various lapses which results from technological incursion.
Due to the advancement in the modern technology, the need to change various laws to suit the technological advancements is inevitable. This is due to the facts that law is dynamic and in order to meet up with the changes in the society, various laws which affect technology calls for changes as such laws could not suit the changing need of the society.
Taking law of contract as a case study, the laws governing contractual agreement need to be changed in order to meet up with the modern days contract as such laws cannot suit the modern contract or contracts being that it is done virtually. Moreover, mutual assent and formalities and interpretation has stored up the need to change laws of contract.
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 K. L. Donnie and D.H. William, op.cit
About the Author
Rifkatu Ali is a final-year law student at Edo State University Uzairue (EDSU). She is an active learner, legal writer and researcher who has a strong penchant for legal writing and legal research. Rifkatu Ali has written many articles and won several essay. She has interest in Tech Law, ADR, Corporate/Commercial Practice and Human Rights amongst others. She had interned virtually with Omaplex Law Firm, Legal Ideas Forum International and Hilton Top Solicitors and currently interns physically with Ipkonmwosa J. Eguakun & Co.
Rifkatu is a leader and has been appointed the Director of Research at the National ADR Research and Editorial Board. She is the Edo State Director of Learned Minds and the Speaker of EDSU LAWSA Legislative House.