Flexible attribution in the electronic contract (A comparative study)


  • Ali Abdullah Naji PhD student, University Of Qom
  • Mahmoud Hekmat Nia Institute of Islamic Culture and Thought in the Islamic Republic of Iran


electronic contract - attribution - flexible - disputes


In light of the developments taking place in the field of electronic commerce and the sale of goods and commodities، Many disputes have arisen related to the law applicable to these commercial transactions، and since the principle of will power is applied in many of these contracts and transactions، where the two parties choose the law that will be applied to the contract.However، in electronic contracts، there was a difference in terms of the applicable law، due to the fact that these contracts are conducted remotely and by different technical means، as the law of will is not sufficient to apply it to these types of contracts.As electronic contracts are by nature international contracts that cross borders، and not only within the borders of a particular country، and may be of a commercial، civil، or mixed nature according to the nature of each contract and the relationship that binds the parties to the contract.The law applicable to the electronic contract is the law of will، that is، the law chosen by the parties. In the event that there is no agreement between the parties about the law that will be applied to the contract، the judge resorts to extracting their implied will through evidence and evidence، and he has to review the competing laws to resolve the dispute. In order to reach the law most closely related to the contract، such as the place of its conclusion or the joint nationality of the contracting parties، other issues emerged that differ from the will، the example of which was the controls that the judge chooses to apply to electronic contracts، especially the flexible attribution control with its discriminatory performance control and the objective focus of the contractual relationship.And these electronic contracts must put in place the laws and regulations that regulate them، and show the rights and commitment of the parties to them، which generates confidence among them in light of the ease of spreading information through this network، and the existence of the possibility to change it and manipulate it before the users of the network communicate it to the other party. Thus، every country sets the necessary laws to regulate these contracts، and countries were not satisfied with this amount of regulation، so they concluded agreements among themselves to regulate these contracts.But the problem is that these contracts are of recent origin، as there are many countries that lack appropriate legal regulation of these contracts، especially in developing countries. Because the place of origin of these contracts is the developed countries، it was obvious that these countries are the first to develop the appropriate laws for them