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§ 3. The Contract of purchase in a network the Internet

For a subject illustration of the legal characteristic of the general design of the electronic contract we will analyse the most widespread contract in Internet space - the purchase and sale contract.

On the Internet hundreds the electronic shops realising thousand of names of the goods are registered. There is and «a shop on a sofa» in which the offer is accompanied with demonstration of all characteristics of the goods, its cost and possible discounts at the immediate acceptance of the offer. However for the subject legal analysis we will choose other example. As a subject of the legal analysis of the electronic contract under the legislation of Tajikistan purchase of a transmission for a motor vehicle "Tojota" the citizen of Republic Tajikistan serves in this case taking place actually.

The buyer who is physically being in territory of Tajikistan, with an e-mail address «garm62@mail.ru», through search system "Google" addresses to firm "Kasmotors" legally incorporated in a city of Almaty, Republic Kazakhstan, to the electronic address

kasmotors2011@mail.ru. From firm "Kasmotors" site it is known, that it is the legal body, and is engaged in delivery of spare parts to any person in any place. The domain name of firm "Kasmotors" is in a zone of jurisdiction of Russia. The buyer on a site «Kasmotors» makes out the electronic demand (offer) for transmission purchase for the address. A domain name of the buyer, we will notice, also is in a zone of jurisdiction of Russia. Firm "Kasmotors" accepts the offer, having informed about it to the buyer the electronic letter. Under its offer the buyer lists from the bank account in "agroinvestbanke" through electronic payment system «VISA electron» into the account «Kasmotors» in "Kazkombanke" the order sum - 2100$. Firm "Kasmotors" on receipt of money for the account, makes out the same order to the Russian firm "Emex.ru" located in mountains. To Moscow, paying the order through "Kazkombank" the same electronic calculation (Firm "Kasmotors" has with «Emex.ru» the contract on joint cooperation on delivery of spare parts). Emex.ru carries out the order (buys a transmission in the United Arab Emirates, making out the order in the same electronic kind, and having paid also through electronic payment system). The seller on the instructions of Emex.ru - Kasmotors sends a transmission from the United Arab Emirates a flight to Tajikistan, to the primary customer (buyer). Kasmotors by Internet e-mail notifies the buyer on order performance, and sends on its electronic address an electronic copy of the document on the property right to cargo, and cargo requisites. The primary customer (buyer) receives cargo in a commercial warehouse of the Dushanbinsky airport, having shown the documents sent to it firm Kasmotors. [522]

Thus, the obligation of the seller on purchase and sale has been executed in nature, really, the third party (being in the United Arab Emirates) on a residence the buyer (Dushanbe).

As a whole, the contract on detail purchase and sale it has been carried out in a communication network the Internet - anybody from the moment of the offer till the moment of reception of the goods did not leave the actual location though subjects of the transaction were in territory of four states - Tajikistan, Kazakhstan, the Russian Federation and the United Arab Emirates.

An example described above are "everyday life" the Internet, the most usual, and such dogovory consist daily in thousand.

If to dismember the resulted example on components, we receive the following legal picture:

- The contract between the buyer and firm "Kasmotors" is konsensualnyj the commission bilateral contract (item 912 GK RT, Republic Kazakhstan GK item 846 [523]) according to which firm "Kasmotors" was obliged to make purchase of a detail for the guarantor. All essential treaty provisions in this case it is available.

- The transaction between firm "Kasmotors" and «Emex.ru» is in frameworks of the general contract on joint cooperation between two legal bodies;

- The transaction between «Emex.ru» and firm in the United Arab Emirates is the complex contract of retail purchase and sale and transportation - vozmezdnyj konsensualnyj the bilateral contract added with the obligation of sending of the goods to the primary customer (the primary buyer). In this case also it is available all essential treaty provisions.

In the resulted case there are a little enough serious standard bases to recognise all these dogovory void at the earliest stage.

The first of these bases - the requirement of fulfilment of such contracts in the simple written form with full identification of the subject.

On request of item 186 GK RT, the transaction of legal bodies with citizens should be made in the simple written form. Non-observance of the simple written form, is underlined in item 187 GK, attracts its invalidity. Articles 912 GK RT, 846 Republics Kazakhstans GK contain the imperative requirement about commission making contract in writing. The contract between the user «garm62@mail.ru» (private person) and firm "Kasmotors" (legal body) is concluded in electronic form, without observance of the standard form.

Speaking about the written form of the contract, pertinently to result M.I.Braginskogo and V.V.Vitrjanskogo's opinion on this problem: «Legal

Regulation of the form of contracts is expressed in an establishment of requirements to it and consequences of their infringement. The purpose of corresponding requirements consists that all of them allow to make relations of the parties more certain, to remove the bases for disputes in the future concerning the fact of fulfilment of the transaction and its maintenance. Some norms give to the certificate of fixing of the transaction public character. The state control over its maintenance is connected with it in interests of a turn of the third parties, the help to the parties in explanation of legal effects of legal acts made by them, and equally information of interested persons on perfect transactions ». [524] Same opinion concerning the contract form has been stated also to R.O.Halfinoj:« One of conditions of the validity of the contract is its fulfilment in the statutory form. In one cases the law supposes contract fulfilment in the oral form, or even by implicative actions; in others - contract fulfilment in writing demands; in the third - demands the contract notarial certification. These distinctions of the requirement of the law concerning the contract form it is defined by the maintenance of the relations constituting a subject of the contract. Contract accusation in the form defined by the law is necessary that most precisely and undoubtedly there was an established fact of concordant will of the parties and the maintenance of this will ». [525]

N.A.Dmitrik notices in this occasion: "Equality" paper "and" electronic »transactions - rather important question. If the transaction be made in writing, but law requirements to registration of this transaction have not been executed, come rather adverse for the parties

Consequences ». [526] Tajikistan Operating the civil legislation does not contain express indication about equating of the electronic text with the written form. Such instructions are available in Law RT« About the electronic document ":" If the Republic Tajikistan legislation requires, that the document has been issued in writing or presented in written form or the written form the electronic document is considered

To corresponding these requirements ». However, only equating of the electronic document with the written form in legal relations it is obviously not enough of one. The simple question, - how to present the electronic document to court, or law enforcement bodies as the proof, not translating it in the material carrier, creates weight legal nestykovok. It is known, what not any electronic document can be transferred on the paper carrier as thus some its requisites, displayed on the computer display, are lost (for example, an e-mail address, or the site domain, having identification signs).

The contract is considered the prisoner at observance of the conditions defined by the law. Demonstration of will of the parties, testifying to intention to conclude the contract should be the making contract proof. [527] in hundred percent of the contracts made in writing, this demonstration means reflexion on a paper of signatures of the parties of the contract.

Therefore, for today to requirements to the written form of the transaction satisfy only documents on written carriers. «The written contract consists by drawing up of the signed document corresponding properly». [528] First of all, it is connected with the signature as an obligatory requisite of the written document: to sign it is possible only the document on the paper carrier. However, as the electronic format of dialogue of the parties of the contract follows from the resulted example, despite

"nepismennost", have created real legal effects. And any actions generating legal effects, should be settled the rule of law. First of all it becomes if necessary to restore initial position, to protect

The broken right to oblige to compensate damnified. And the Internet here - not an exception. Besides, M.I.Braginsky and V.V.Vitrjansky mark the important factor at the written contract conclusion: «the Written contract consists by the settling document signed by the parties, and is equal by an exchange of the documents which are carried out with use of post, telephone, electronic and other communication. Thus it is necessary, that the way selected the parties could allow to establish, that the document proceeds from the person which is the party in the contract». [529]

Other firm rule of document circulation is «the original rule», i.e. so-called «the first copy» on which signatures are put down and the press are put down.

According to A.I.Saveleva, «from the point of view of process of electronic document circulation the given feature has that value, that in a network the Internet is completely lost any sense in differentiation of concepts« the original "and" a copy »the document as the user is reached only by n th copy of the document (because of division of each digital message into separate packages of data, each of which goes to the addressee independently). Therefore traditional giving by the domestic

pravoprimenitelnymi bodies of a certain special force to originals of contracts with reference to the contracts concluded in the electronic environment, loses any sense ». [530]

V.M.Yelin, analyzing the legal characteristic of the contracts concluded in virtual space of the Internet, notices, that absence of actual contact between participants of Internet relations generates a problem of uncertainty of subject structure. Authentic identification of the participant of Internet relations is possible only at application by the subject of a digital signature. In all other cases identification of the person participating in given relations is doubtful. For these reasons, the author concludes, defect of subject structure attracts invalidity of the transaction. [531] «in the presence of such express indication non-observance of the form demanded on pain of invalidity, - specifies N.V.Rabinovich, - represents infringement of the imperative rule of law». And further N.V.Rabinovich underlines: « The first consequence of a recognition of the transaction void what were the bases of its cancellation, is the termination of its legal life. It is meant, that by the transaction, being is declared by void, ceases to exist and does not come under to execution ». [532]

The second basis is an absence of spatial localisation of subjects of legal relations - one of corner stones of institute of transactions with which other elements of this institute are connected also. Contractual the process described in our example, occurred not in physical space, and not in territory of any state; from the very beginning it passed in virtual space of the Internet, including and purchase payment. Participants of the transaction physically were in territory of four states. What right is applicable in this case - the legal science yet does not give on it the accurate and unequivocal answer. The juridical fact - transmission original purchase - has occurred in physical space of the United Arab Emirates. However the offer has been made, is accepted later, and the transaction has been paid in virtual space of the Internet. Such position can be designated as «uncertainty of jurisdiction».

Jurisdiction is defined as a consequence of a recognition of the power of the state derivative of the state sovereignty over certain territory. [533]

S.A.Babkin allocates in jurisdiction as universal category three levels:

- Material, i.e. generated in imperious instructions sphere of action of rules of law;

- Remedial, - is standard fixed sphere of the competence of the state bodies on application of rules of law to relations with a foreign element;

- Practical - real possibility of the state to achieve enforcement of rules of law. [534]

Darrel the Cop also discriminates three types of jurisdiction conventional in international law. The Cop carries the standard jurisdiction reflected in legal acts, practical jurisdiction, and jurisdiction to them «for consideration», i.e. remedial. [535 [536] apparently, classification of types of jurisdictions at S.A.Babkina and Darrela the Cop practically coincide.

Pravoprimenitelnaja activity in the field of private law should include following stages:

- Definition of remedial jurisdiction with the help jurisdiktsionnyh

Norms;

- Definition of material jurisdiction by means of legal rules;

- Application of conflict rules.

Only jurisdiktsionnye norms can establish action sphere

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Conflict rules.

G.K.Dmitrieva in this occasion marks: «With the advent of a modern communication facility dogovory even more often consist between the absent parties by correspondence. As a result the contract has lost real, physical touch with territory of any state. The place of contract from a physical, objective category has turned to the legal category differently treated in the right of the various states». Because of a difference of legal systems, in case of making contract on correspondence when the acceptance is sent from Moscow and it is received in London, the contract legally will not have at all the jail. When the acceptance is sent from London to Moscow, the contract will have two legal jails [537].

Apparently from the resulted example, in the course of making contract e-mail which appointment is reception, departure and storage of electronic messages has been used.

We already resulted A.J.Rykova's opinion which believes, that in view of complexity of application of territorial criteria to activity in a network as the only thing identifying the person and its territorial accessory a sign the Internet site address acts. In our example the offer has arrived from the electronic address which are in a domain zone "hectares". If thus the tenderer physically was in territory of Tajikistan for the acceptor the subject is in territory of the Russian Federation - in it accurately specifies its domain sign. For this reason if to agree with A.J.Rykova's opinion, we should agree that in this case an applicable law is the right of the Russian Federation as the domain name of the buyer is in a zone of jurisdiction of the Russian right. Such assumption leads to infringement of basic legal establishments about right action in space of the concrete state.

Investigating features of realisation of retail purchase and sale on a network the Internet, A.K.Zharova marks: «How to classify the transaction concluded on a network the Internet? First of all it is necessary to define, trade concerns what kind of trade in a network the Internet. According to the foreign trade activities qualifier, sale of the goods through the Internet represents the retail trade which is carried out through TV shops and computer networks. At the same time from the letter of the Ministry of Finance follows, that the world computer network the Internet mismatches definitions of objects of the trade established in state standards. Accordingly, at a finding-out stage, whether the network the Internet a place of retail purchase and sale is, we see contradictions in the subordinate legislation. In this connection, the question on a place of fulfilment of the transaction gets the greatest urgency». [538 [539] [540]

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Article 11 of the Modelling law about bases of regulation of the Internet, defining a place and time of fulfilment of legally significant actions, establishes: «legally significant actions which have been carried out with use of the Internet, admit made on state territory if the action which has generated legal consequences, has been made by the person during its finding in territory of this state». Thus, authors of the modelling law have extended to the actions made in virtual space of the Internet, the Law of a place of fulfilment of the certificate (lex loci actus) - the form of attachment meaning application of the right

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That state in which territory the private-law certificate is made.

The position differing from opinion of authors of the Modelling law, I.M.Rassolov has stated. He in this occasion marks: «If network trade is carried out by an Internet platform at once in several structural zones of the Internet, the situation looks a little uncertain». For the decision of a disputable situation he suggests to assume as a basis a principle of the greatest communication (Proper Law). If the contract is subordinated more than one jurisdiction and the party have not agreed concerning an applicable law, in interests of the parties it is necessary to apply to it the right which as under the form, and as a matter of fact recognises the given contract valid. [541 [542] [543] we believe, that it is the most comprehensible legal decision of a question.

Besides, the initial customer (buyer) acted at making contract under a pseudonym «garm62» which does not give any representation about its true legal personality. However, the offer from «garm62» is accepted by firm "Kasmotors" without finding-out of details about the legal personality «garm62». In the electronic contract as essential conditions the exact technical characteristics of a transmission, and a condition of payment of the order acted. The legal personality of the party of the contract owing to conventional character of relations on the Internet, was supposed.

In precisely the same way, to the customer (buyer) data about the legal personality of the legal person registered on the Internet under the name «Kasmotors» were not known. In certain cases it can form the basis for a transaction recognition недействительной.2

The third basis - use at calculations of the electronic account.

The buyer has paid purchase and compensation believed in the electronic way, from the bank account, with use of the personal PIN-CODE.

Calculations with use of bank cards represent the form of clearing settlements not settled directly by the legislation, the basis for which existence is the custom business оборота.3

Besides, here that is specified in a glossary «Instructions for use the account and a plastic card» agroinvestbanka:

«The PIN-CODE (PIN - personal identification number) - the four-unit number which is a confidential code of a card. The PIN-CODE is generated by bank with confidentiality observance, is not accessible to employees of bank, is known only Depozitoru, and does not come under to disclosure to the third parties. At fulfilment of operations with a card and drawing up of the electronic document the PIN-CODE is analogue of sign manual Depozitora».1

Thus, having published the «Instructions for use the account and a plastic card», agroinvestbank has actually entered for depozitora the electronic digital signature in the form of the PIN-CODE, having ignored thereby positions of the law on the electronic digital signature.

The fourth basis - application of the electronic digital signature.

No document has a validity, or that while on him there is no the sign confirming its validity does not admit quality. Such sign in overwhelming majority of cases (along with an impress of a seal and some other requisites) is the signature of the person from which name the document is constituted. The signature under the document has some the independent purposes, including acknowledgement of the test of the document. The signature under the contract text means the consent of the person to conclude the contract on the conditions specified in the text.

Objecting such, apparently, classical requirements to conditions of legitimation of the contract, A.I.Savelev writes: «Feature of the Russian legislation as, however, and many other laws and orders, general provisions about which transactions« are ground »under traditional paper documents, the close interrelation of a question on presence of the written form of the contract with presence or absence of the signature on the document in which party will on making contract is expressed is. At the same time the requirement of presence of the signature of each of the parties under the document expressing its will as the condition of observance of the written form, creates serious obstacles for development of electronic commerce». [544]

We already noticed, that its owner cannot use the electronic digital signature in other purposes, is exclusive except for what it is created (for the tax reporting, for example). For the conclusion of the single contract, for example, with firm "Kasmotors" to subscribe the electronic digital signatures received in the specified Center, its owners cannot, as firm "Kasmotors" has no closed key of the signature of the customer.

Such legal confusion with electronic digital signatures does their wide application of the extremely inconvenient.

G.S.Manshin, investigating the legal problems connected with application ETSP, marks: «There is a sharp necessity of expansion normativnopravovoj bases of application ETSP which should include not only detailed settlement of legal status ETSP, but also define a legal status of the certificating centres, and also the rights and duties of the persons using ETSP». [545]

As a result of the analysis resulted above the contract (or, more precisely, contracts), we have the following legal picture.

All dogovory are concluded in the electronic form. The electronic form has difficult enough technical structure which without the special computer equipment connected to the Internet to apprehend it is impossible.

The action sphere - occurrence of treaty obligations, their stage-by-stage performance by different subjects is a virtual space of the Internet in which subjects physically being in the different countries, virtually were «in one place».

All dogovory are constituted without observance of their form, without instructions of requisites, prints of the seals, presence of signatures, even without presence of the electronic digital signature.

The contract parties are guided by a principle of a presumption of the legal personality of the counterpart, not being convinced in the validity of presence its right - and capacity.

All these obvious deviations from standard requirements under the form and the contract maintenance, nevertheless, do not prevent to carry out to the parties the treaty obligations. It yet did not lead to claim disputes, but occurrence of such disputes is not excluded.

According to N.A.Dmitrika, in the course of the conclusion of contracts in Internet space affect, besides procedural, also institutsionalnye the factors doing inapplicable traditional designs of realisation of the rights. In particular, uncertainty of identification of subjects of relations of networks creates difficulties with definition applicable concerning the right parties. Participation in mutual relations of the parties of intermediaries attracts necessity of use of the difficult multilevel designs considering the rights and duties of subjects both at the organisation of electronic document circulation, and at fulfilment of transactions with its use. Hence, legal maintenance of process of the conclusion of contracts in a network the Internet also is connected with creation of mechanisms of realisation of the rights provided by the civil legislation and duties of subjects. [546]

A.I.Savelev, criticising the similar point of view, names it «the sceptical approach"."Courts quite often most advantageously apply

Traditional approaches for the decision of questions of an establishment of the jurisdiction concerning foreign respondents on the disputes arising in connection with use of a network the Internet, - are considered by A.I.Savelev. - it is unconditional, certain adaptation to specificity of a network the Internet, but in the rest it takes place

All the same «the minimum contacts","a place of execution of a contract», a place of fulfilment of an offence or approach of its harmful consequences ». A.I.Saveleva's [547] Opinion is a direct reference on the maintenance of chapters 66-68 GK the Russian Federation and the item of item 1218-1224 GK RT, that is attempt to limit the standard

Regulation of legal relations in virtual space of the Internet an existing standard material. But, as shows

The above-stated example, is obviously not enough of it.

Summing up to the analysis of contracts of purchase in virtual space of the Internet, considering the stated specific features of the contract of purchase in virtual space of the Internet, consider expedient to provide in the normative act regulating the relations on the Internet, following positions:

«At fulfilment of any actions of legal character, in particular, contracts and other legal acts in virtual space electronic documents are used. These actions made in virtual space (on-line) cannot be recognised

Void only on the ground that they are concluded and (or) executed by an exchange of electronic documents.

If the legislation, other normative acts or the agreement of the parties information representation in writing is required, this requirement is considered executed by representation of the electronic message if the information containing in it is stored in an Internet site file, and is accessible to the subsequent reference to it ».

These positions reach two essentially important purposes:

- The legal status of the electronic document will be legalised as "document" - the information existing in any objective form which can be identified;

- As the electronic message all the same not the paper document, such flexible approach will resolve available contradictions.

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A source: Abdudzhalilov Abdudzhabar. Theoretical problems of civil matters on the Internet. The dissertation on competition of a scientific degree of the doctor of juridical science. Dushanbe - 2015. 2015

More on topic § 3. The Contract of purchase in a network the Internet:

  1. the Chapter II. Elements of the contract of retail purchase and sale. Especial] »makings contract of retail purchase and sale.
  2. §3. The form of the contract of retail purchase and sale. Features of making contract of retail purchase and sale.
  3. § 2. Concept and contract elements (the foreign trade contract) international purchase and sale of the goods
  4. the Chapter I. The Civil-law doctrine and the legislation on retail purchase and sale. Kinds of the contract of retail purchase and sale,
  5. §2. Execution of the international contract. Structure of contractual communications and kinds of the documents which are making out execution of the international contract of purchase and sale
  6. §1. Researches of the contract of retail purchase and sale in the Russian To jurisprudence.
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  8. § 4. Previsibility at injury in a network the Internet
  9. §2. The maintenance of the contract of retail purchase and sale.
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  12. § 1. Ways of use of means of an individualization in a network the Internet
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  14. Change of structure of the share capital with application of the contract of purchase
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  19. use of resources of a network the Internet for formation key educational kompetentsy senior pupils
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