| . | The passage of the ITA-2000 has extended the Indian Contract Act-1872 to the Digital media. This has however left some aspects of the Contract Act as applicable to the digital media in an ambiguous state. "Creation of Agency" is one such. The ITA-2000 has amply clarified its intention to extend all laws of the Indian geographical jurisdiction applicable to written documents to Electronic Documents.( Subject to specified exemptions). One such Act which would be of extreme interest to the analysts is the "Indian Contract Act 1872" which will now inter-alia be used to interpret many aspects of Digital contracts. One interesting offshoot of such extension of "Meta Society Law" to the "Cyber Society" is the role of an "Agent". According to Sec 182 of the Indian Contract Act-1872,
The true relationship of the "Agent" and the "Principal" is to be gathered from the nature of the contract and the terminology used is not decisive. According to the Act, the Agent can even be a minor or other wise be a person who is not of "Contractual Capacity". The agency need not be backed by any consideration and can even be implied. The Act is therefore liberal in defining the eligibility for being an "Agent" and has placed the "Principal" responsible for his actions. In the light of these principles, let us look at the Cyber Society. Here the contracts are as much between two human beings as between two Computers. It is an accepted norm of the Cyber Society that Computers are assigned to do certain routine activities just as a servant is appointed to do some of the routine activities in the Meta society. Some Computers act as "Gate Keepers" to web sites, challenging people who are trying to enter- to identify themselves and allowing them or disallowing entry. Some Computers create "Dynamic HTML Pages" and enter into personal dialogue with the visitor and exchange information of various kinds. Most of the "Shopping Contracts" are struck between the "E-Commerce Server" and the Netizen's computer automatically. While the Buyer may be personally supervising the purchase at his end, the seller is by "Common Practice" not personally intervening in the conclusion of the "Sale Contract". Is such a Contract Valid? If so, under what authority? Is the Seller's Computer acting as an agent of the Seller? are issues to be discussed. Unless we consider that the Server is an "Authorised Agent of the Seller, the contract between the Buyer and the Seller is void ab initio. This is also true of all the Web based contracts and also EDI transactions. Since the intention is to strike a valid contract, we must consider that the Contract entered into between a human being operating behind a terminal on a real-time basis, and an automated Hardware-Software combine at the other end is valid as if the combination represents a "Human Being". It is more appropriate to recognize this "Combination" an "Agent" rather than by any other description. Alternatively, we should by law have defined a "Computer" as a "Legal Person in the Digital Media".(Digital Person?) This "Necessity" is therefore in conflict with the provisions of the Contract Act that "An Agent must be a Person". How do we resolve this dilemma? May be by saying "Hey- Don't extend all Meta Society Laws to the Digital Society. It is Different" ? Naavi |
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