Fairness in electronic contracts can be assessed via contract formation process and substantive clauses.
Authors
Dona Budi Kharisma, Department of Privat Law, Universitas Sebelas Maret, Indonesia
Agus Yudha Hernoko, Department of Privat Law, Universitas Airlangga, Indonesia
Prawitra Thalib, Department of Privat Law, Universitas Airlangga, Indonesia
Digvijay Singh Rana, Lecturer, Jindal Global Law School, O. P. Jindal Global University, India
Summary
Introduction to the Problem: The development of information technology has given rise to various types of electronic contracts in the form of adhesion contracts. Unfair legal issues surround the contract formation process and the content of new electronic contract models, such as browser wrap agreements and sign-in wrap agreements. In several cases that have been decided by the Court, the panel of judges has its own standards for deciding disputes based on a fair electronic contract. Purpose/Study
Objectives: This paper aims to elaborate on the nature of contractual fairness from an electronic contract perspective.
Design/Methodology/Approach: This study employed the statute approach and the case approach. This research examines various regulations relating to agreements, electronic contracts, the doctrine of unconscionability and examizing a number of decisions pertaining to electronic contracts from courts in Indonesia as well as various other nations.
Findings: The findings of the study demonstrate that the fairness of electronic contracts can be evaluated through two key criteria: the contract formation process and the substantive clauses within the agreement. Procedural unfairness arises when the disadvantaged party is unaware or does not fully comprehend their contractual obligations. Conversely, substantive unfairness occurs when contractual terms impose disproportionate burdens on the weaker party. Beyond the doctrine of unconscionability, ensuring equity in electronic contracts necessitates adherence to the principles of transparency, the duty to read, and reasonable expectations. To safeguard consumers from inequitable agreements, these principles should be codified within the regulatory framework of Indonesia’s Electronic Information and Transactions Law.
Published in: Jurnal Hukum Novelty
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