The law of Hong Kong recognizes most contracts which are formed electronically. The following elements are required to form a valid electronic contract:
1) Offer
2) Acceptance
3) Consideration.
4) Intention to create legal relations.
For online business, customer would usually be required to complete an order form online containing the terms and conditions of the contract to be formed as making an offer.
The online business’s acceptance of the customer’s offer is shown by sending an email confirmation or acknowledgment on its website.
The terms and conditions of the electronic contract formed online must be sufficiently brought to the attention of the customer before the contract is made, and the terms will not be binding on the customers.
The website of online business should therefore be designed in such a way so that the customer must scroll down to the bottom of the entire set of terms and conditions on-screen and click an "I accept" button before they can complete the order.
Generally, consideration is evident for most online contracts. It is either when a supply of goods or services is made in exchange for a customer's payment, or a customer accepts the terms of use in exchange for access to the website or software (if it is free access).
In addition, the intention to create legal relations is normally presumed for most online contracts due to the commercial nature of these transactions.
But Schedule 1 of the Electronic Transactions Ordinance (Cap. 553) set outs a list of documents which could not be formed and/or executed electronically, for example:
1) Wills
2) Trusts
3) Deeds or documents relating to land charges, mortgage, assignment etc under the Conveyancing and Property Ordinance (Cap. 219)
4) Statutory Declarations
5) Oaths & Affidavits
For legal advice or services on E-Commerce, please contact CHOW & CHEUNG, Hong Kong Solicitors & Notary Public. [Tel: +852 2856 3799 Email: cac@ccsn.hk]
www.ccsn.hk
The above contents do not constitute legal advice and it should not be regarded as a substitute for detailed advice in individual cases. Transmission of this information is not intended to create and receipt does not constitute a lawyer-client relationship between Chow & Cheung and the user or browser. Chow & Cheung is not responsible for any third party content which can be accessed through the website.