Legal Issues in E-Healthcare Systems - E-Healthcare Systems and Wireless Communications - page 32

contract is a transaction formed by electronic
messages in which the messages of one or both
parties will not be reviewed by an individual as
routine step in forming the contract. This expla-
nation replaces the “writing” requirement with a
“record” to equate electronic record with paper
records and accepts electronically formed contract
as valid. However, the US legislation in section
202 does not define electronic contract but only
a description on the methods of forming a valid
contract is available.
The electronic or e-contracts may take the
form of e-mail contracts or web contracts (Werner,
2000). In the first type of contract the sender of an
offer or acceptance types the offer or acceptance
and includes e-mail address then sends it to the
recipient as it is done in an offline environment.
In e-mail related contract, the e-mail may require
the technical assistance of a third party who is
called as Internet Service Provider (ISP). The ISP
provides e-mail accounts and stores the message
until the message is downloaded. A contract can
be concluded exclusively by e-mail communica-
tion only or it can be mixture of web offer and
e-mail acceptance. A web contract is concluded
by mouse click. In a virtual shop the supplier
will place an e-catalogue, the customer then has
to tick a box to select particular item. In order to
complete the order, the purchaser has to provide
the credit card number and click “Pay” or “I Ac-
cept” or similar button.
For a contract to be valid, the essential ingre-
dients of a contract must be present. The essential
elements are offer, acceptance, consideration,
capacity and intention to create legal relation. The
technology does not change the necessity of these
elements to form an e-contract and anyone enter-
ing into any contracts for e-health related goods
or services shall have all the elements present in
their contract. However, it creates new problems
and challenges. The applicability of the existing
law to the new problems without modification is
questionable. Turban (2000) pointed out that it
is difficult to establish the elements of contract

when the human elements in the processing of
the transaction are removed and the contracting
performed electronically.
Therefore it is necessary to clarify that contract
can be performed with intelligent agents without
human involvement. An important issue to analyse
in e-contract is about webvertishments. One may
argue that usually the advertisement on the web site
is considered as invitation to treat and not an offer.
It is true that normal web advertisements which
only receive the netizens' offer can be considered
as invitation to treat but there are other types of
web advertisements that require positive action
from the other party like providing with the credit
card numbers and once provided the transaction is
confirmed. Due to this type of webvertishments,
one impact of the Internet is that the line between
advertisements and legal offers has been blurred.
On the Internet, thousands of web sites advertise
their products or services but they also make offer
that are legally binding if a consumer clicks the
“yes” or “I accept” button, signifying the assent
to the offer. The Internet advertisement may be
considered as offers capable of creating a contract
if a consumer assents to the advertisement. For
example, an online medical store advertises its
medicines. Prospective buyers browse the web
site and select the medicines, which they intend to
purchase. Once selected, the payment is made by
credit card. With this a purchase is completed and
the buyer merely waits for the items to be delivered.
If the web store is considered as not making an
offer, there would be no contract until the store
owner either informs the buyer his intention of
performance or performs the contract by sending
the medicines ordered which will eventually slow
down the Internet transactions. Here, the legisla-
tion needs to be amended to specify whether an
online advertisement is an offer or advertisement
to treat. Such a clarification is important for clar-
ity purposes. The following 2 cases suggest that
online advertisements could be considered as offer
rather than invitation to treat.