ATTRIBUTION, ACKNOWLEDGEMENT

AND DISPATCH OF ELECTRONIC

RECORDS

INTRODUCTION

Electronic contracts are concluded either through e-mail or website. Most of us have used e-
retailing sites such as Amazon, Flipkart and Jabong etc.These sites are electronic analogue of
shop windows and catalogues, advertising the products and their prices. Even e-mail price list
can also be construed as 'invitation to treat' and not an 'offer.
If order forms, containing terms and conditions stated by e-businesses themselves are
sent through mail that can be construed as 'proposals. It needs to be noted that IT Act, 2000 gives
legal provisions regarding Attribution, Acknowledgement and Dispatch of Electronic Records.
Use of the term 'Electronic Records' and not 'Electronic Contracts' indicates that IT Act has
wider coverage and does not restrict itself to Electronic Contracts only. Provisions regarding
Attribution, Acknowledgement and Dispatch of Electronic Records answer the following
queries:
(i) When the transmission of an electronic record shall be attributed to the originator?
(ii) Would the acknowledgement by receiver or addressee mandatory?
(iii) How to determine time and place of dispatch and receipt of electronic record?
Legal Provisions Regarding Attribution, Acknowledgement and Dispatch of Electronic
Records are as follows:

ATTRIBUTION OF ELECTRONIC RECORDS TO THE ORIGINATOR (Sec. 11)

An electronic record shall be attributed to the originator, if it was sent:

(a) by the originator himself;
(b) by a person who had the authority to act on behalf of the originator (i.e. agent of the
originator) in respect of that electronic record; or
(c) by an information system programmed by or on behalf of the originator to operate
automatically.
It should be noted that the term originator does not include an intermediary.
 Originator himself

Electronic record shall

be attributed to the
Attribution (Sec.11) By his agent
originator
if sent by

Information system
programmed by
originator or his agent

Fig.Provision Regarding Attribution at a Glance

ACKNOWLEDGEMENT OF RECEIPT OF ELECTRONIC RECORDS BY THE

ADDRESSEE OR RECEIVER (Sec.12)

Rules regarding acknowledgement of receipt:

(a) No Agreement Regarding Mode of Acknowledgement: Where the originator has not
stipulated that the acknowledgement of receipt of electronic record be given in a particular form
or by a particular method, an acknowledgement may be given by:
(i) any communication by the addressee, automated or otherwise; or
(ii) any conduct of the addressee, sufficient to indicate to the originator that the electronic record
has been received [Sec. 12(1)].

(b) Stipulation by the Originator: Where the originator has stipulated that the electronic record
shall be binding only on receipt of an acknowledgement of such electronic record by him, then
unless acknowledgement has been so received, the electronic record shall be deemed to have
been never sent by the originator [Sec. 12(2)].

(c) No Stipulation by the Originator: When the originator has not stipulated that the electronic
record shall be binding only on receipt of such acknowledgement, and the acknowledgement has
not been received by the originator, then the originator may give notice to the addressee stating
that no acknowledgement has been received by him and specifying a reasonable time by which
the acknowledgement must be received by him and if no acknowledgement is received within the
aforesaid time limit he may after giving notice to the addressee, treat the electronic record as
though it has never been sent [Sec. 12(3)].It deserves to be noted that when A sends e-mail to B.
A is the originator, B is the addressee and gmail.com is the intermediary.
 By communication

Mode of acknowledgement
if
not prescribed
By conduct

Electronic record shall

Acknowledgement Stipulation regarding be binding only on
(Sec.12) acknowledgement acknowledgement

If no acknowledgment
No stipulation
received, originator specifies
regarding
reasonable time by which it
acknowledgement
is to be received

Fig. Provision Regarding Acknowledgement at a Glance

DETERMINATION OF TIME AND PLACE OF DISPATCH AND RECEIPT OF
ELECTRONIC RECORD (Sec. 13)

Unless otherwise agreed between the originator and the addressee, the time of dispatch of an
electronic record occurs when it enters a computer resource outside the control of the originator
(Sec. 13(1)].

Time of Dispatch
When electronic record enters a
computer resource outside the
control of originator

How to determine Place of Dispatch

time and place of • Originator's place of business
dispatch • If more than one place of business
then principal place of business
• If no place of business then place
of residence
Time and • In relation to body corporate the
Place of place where it is registered
Dispatch
and Receipt
(Sec.13) Time of Receipt
• In case of designated computer resource
- when record enters it
• In case of no designated computerresource
- when record is retrieved by theaddressee

How to determine
time and place of receipt Place of Receipt
• Addressee's place of business
• More than one place of business
then principal place of business
• If no place of business then place
of residence
• In relation to body corporate the
place where it is registered

Fig. Provision Regarding Time and Place of Dispatch and Receipt at a Glance

Unless otherwise agreed between the originator and the addressee, the time of receipt of an
electronic record shall be determined as follows namely:
(a) If the addressee has designated a computer resource for the purpose of receiving electronic
records:
(i) Receipt occurs at the time when the electronic record enters the designated computer
resource; or
(ii) If the electronic record is sent to a computer resource of the addressee that is not the
designated computer resource, receipt occurs at the time when the electronic record is retrieved
by the addressee;
(b) If the addressee has not designated a computer resource along with specified timings, if any,
receipt occurs when the electronic record enters the computer resource of the addressee [Sec.
13(2)].
(c) Unless otherwise agreed to between the originator and the addressee, an electronic record is
deemed to be dispatched at the place where the originator has his place of business, and is
deemed to be received at the place where the addressee has his place of business [Sec. 13(3)].

(d) The provisions of sub-section (2) shall apply notwithstanding that the place where the
computer resource is located may be different from the place where the electronic record is
deemed to have been received under sub-section (3)[Sec. 13(4)].

(e) For the purposes of this Section:

(i) If the originator or the addressee has more than one place of business, the principal place of
business, shall be the place of business;
(ii) If the originator or the addressee does not have a place of business, his usual place of
residence shall be deemed to be the place of business;
(iii) "Usual place of residence", in relation to a body corporate, means the place where it is
registered [Sec. 13(5)].

Validity of Contracts Formed through Electronic Means [Inserted Vide IT (Amendment)

Act, 2008 (Sec. 10A)]: Where in a contract formation, the communication of proposals, the
acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are
expressed in electronic form or by means of an electronic record, such contract shall not be
deemed to be unenforceable solely on the ground that such electronic form or means was used
for that purpose. This section provides legally binding character to e-commerce activities.

Secure Electronic Records and Secure Electronic Signatures

The IT Act, 2000 lays down the legal presumptions as to when the electronic record' and
'electronic signature' are deemed secure.

Secure Electronic Record (Sec. 14)

Where any security procedure has been applied to an electronic record at a specific point of time,
then such record shall be deemed to be a secure electronic record from such point of time to the
time of verification.

Secure Electronic Signature (Sec. 15)

An electronic signature shall be deemed to be a secure electronic signature if:
(a) the signature creation data, at the time of affixing signature, was under the exclusive control
of signatory and no other person; and
(b) the signature creation data was stored and affixed in such exclusive manner as may be
prescribed.
Explanation- in case of digital signature, the 'signature creation data' means the private key of the
subscriber.

Security Procedures and Practices (Sec. 16)

The Central government may for the purposes of Secs. 14 and 15 prescribe the security
procedures and practices keeping in view the commercial circumstances, nature of transactions
and such other related factors as it may consider appropriate.

Communication of Offer, Acceptance and Revocations in case of E-Contract:

The IT Act, 2000 has to be read with Indian Contract Act, 1872, to settle the issues relating to
formation of contract. The IT Act, 2000 does not define the promisor and promisee rather it
defines originator and addressee. The definition of originator and addressee is different from a
promisor and promisee. Because in case of E-Contract the promisor and promisee both have to
act as originator and addressee. There is difference in IT Act from Contract Law with regard to
communication of proposal and acceptance also. The IT Act insists on sending
acknowledgement of electronic record to be bound by that. Hence, communication of proposal
and acceptance will be complete only after receipt of acknowledgement by the concerned parties.
As per IT Act, the place of conclusion of contract will be where acknowledgement is received by
the acceptor. The place of receipt of electronic record is the principal place of business of the
addressee.
Since the addressee will be bound by the record on receipt of acknowledgement, the question
arises, has the IT Act extended the right of revocation before the time of receipt of
acknowledgement by the acceptor from the proposer? These issues need to be resolved to avoid
conflict between Contract Act and IT Act. Another problem relating to revocation is, when
acceptance is made on website, being an instantaneous mode; revocation will not be practically
possible."
The above discussion makes it clear that present legal regime leaves some aspects of formation
of e-contracts unanswered. Judicial interpretations and efforts at the level of model law shall be
able to bring more clarity in the times to come.