The Legal Challenges of Implementing Electronic Transactions
Thomas J. Smedinghoff
Locke Lord LLP
September 28, 2008
Uniform Commercial Code Law Journal, Vol. 41, No. 3, 2008
This article analyzes the law governing electronic transactions, and the legal requirements for creating enforceable electronic transactions of any type. It focuses on the fundamental issues that must be addressed by any business seeking to ensure that the processes it uses for its electronic transactions are legally valid and enforceable. To do so, the article examines the law with respect to the following three general questions:
* Authorization - Can this transaction be done in electronic form? Does existing law in the relevant jurisdictions allow the parties to conduct the proposed transaction in electronic form, or does existing law either prohibit doing the transaction electronically or present legal barriers that make its enforceability uncertain?
* Electronic Requirements - What are the electronic-specific rules? What electronic-specific rules apply, and what requirements must be satisfied to ensure that the transaction is legally valid and enforceable? The focus here is on electronic procedural requirements applicable to all transactions, not on the substantive legal requirements for a particular transaction.
* Security - Is the transaction trustworthy? What is required before the parties will be comfortable relying on the transaction? How can the parties be sure who sent an electronic message or who signed an electronic record? How can the parties be sure that the record has not been altered since it was created? Are the electronic records sufficiently trustworthy such that it will be enforced by a court?
Number of Pages in PDF File: 32
Keywords: electronic commerce, e-commerce, electronic transaction, e-transaction, electronic contract, e-contract, electronic, UETA, E-SIGN, UNCITRAL, e-business, security, electronic signature, e-signature
JEL Classification: K12, K20, K29, K30, K33, K39, K40
Date posted: September 29, 2008