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Cyber Contracts in Tanzania under the Electronic Transaction Act, No.13 of 2015

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Cyber Contracts in Tanzania under the Electronic
Transaction Act, No.13 of 2015

Digitally signed by Asherry Magalla

DN: cn=Asherry Magalla gn=Asherry

Asherry Magalla c=Tanzania, United Republic Of

l=TZ o=Independent Researcher
ou=Independent Researcher
e=magallajr@gmail.com
Reason: I am the author of this

Magalla document
Location: Dar Es Salaam-Tanzania
Date: 2017-04-12 12:27+03:00
 Copyright Statement
No part of this publication may be reproduced or transmitted in any form or
by any means, electronic or mechanical, including photocopying, recording,
or any information storage and retrieval system, without permission in
writing from the publisher. Details on how to seek permission, further
information about the Publisher‟s permissions and other arrangements can
be obtained through his email, asherryb.p.magalla@gmail.com
This paper and the individual contributions contained in it are protected
under copyright by the Publisher (other than as may be noted herein).

Copyright © 2017 Asherry Magalla. All rights reserved

i
 Dedication
To My Son, Ryan Asherry Magalla

ii
 Acknowledgement
I acknowledge G.O.D. because I wouldn‟t have everything and every
person surrounds me without HIM.

iii
 Table of Contents
Copyright Statement......................................................................................................... i
Dedication ........................................................................................................................ii
Acknowledgement ........................................................................................................... iii
Table of Contents ............................................................................................................iv
Cyber Contracts in Tanzania under the Electronic Transaction Act, No.13 of 2015 ........ 1
1.0 Introduction ............................................................................................................... 1

1.1 What is Contract? ...................................................................................................... 2

1.2 The Revolution Brought By the Electronic Transaction Act, 2015 ............................. 2

1.2.1 Whether e-contract is a valid contract (recognition)? ............................................. 3

1.2.2 Validity of E-Contract on the Part of Definition of Various Terms ........................... 4

"Access" .......................................................................................................................... 4

"Addressee”..................................................................................................................... 4

“Computer system” .......................................................................................................... 5

“Consumer” ..................................................................................................................... 5

“Data" .............................................................................................................................. 5

“Data message” ............................................................................................................... 6

“Electronic communication” ............................................................................................. 6

"Electronic Gazette" ........................................................................................................ 7

"Electronic record" ........................................................................................................... 7

“electronic signature” ....................................................................................................... 8

“Electronic transaction”.................................................................................................... 9

"Originator" .................................................................................................................... 10

“Place of business” ........................................................................................................ 10

1.2.3 Acceptance of the Online Agreement (offer) ........................................................ 11

iv
1.2.4 Time of dispatch and receipt of electronic communication .......................... 13

1.2.5 Time of Communication ....................................................................................... 13

1.2.6 Acknowledgement of the Online Acceptance ....................................................... 15

1.2.7 Whether there is satisfaction of e-signature ......................................................... 17

1.2.8 On Electronic signature (s.6); ............................................................................... 17

1.2.9 On securing electronic signature (s.7 & 8); .......................................................... 18

1.2.10 The legal consequences for the creator of the signature .................................... 20

1.2.11 How e-contract terms are valued?...................................................................... 20

1.2.12 Online mistakes or input errors........................................................................... 23

1.2.13 Electronic evidence on online agreement ........................................................... 26

1.2.14 Amendments of the Evidence Act, [Cap.6, R.E. 2002] ....................................... 29

1.2.15 Jurisdiction of the courts and choice of law ........................................................ 35

1.2.16 The Legal Requirement for Consensus ad idem in Contract .............................. 38

1.2.17 The Issues of Time and Place of Online Contract .............................................. 39

1.2.18 Dispatch and Receipt of E-Communication ....................................................... 40

1.2.19 Time and Place of Online Contract Formation ................................................... 44

1.2.20 The Aspect of E-Agent ....................................................................................... 45

1.2.21 What is the Protection of Customers In Online Agreement? .............................. 49

1.2.22 Duties of Suppliers to Online Consumers ........................................................... 50

1.2.23 Time for execution of order ................................................................................ 52

1.2.25 The Cancellation of the Online Sale ................................................................... 54

1.2.26 Particulars in an Electronic communication ........................................................ 57

1.2.27 Unsolicited goods, services or communications ................................................. 58

1.2.29 Payment and Issuance of Receipt in Electronic ................................................. 61

v
1.2.30 Service By Electronic Means .............................................................................. 62

1.2.31 Online Auction and Traditional Auction .............................................................. 64

1.3 Conclusion .............................................................................................................. 65

BIBLIOGRAPHY ........................................................................................................... 67
Text Books .................................................................................................................... 67

Articles and Journals ..................................................................................................... 70

Legal Documents .......................................................................................................... 74

Case Laws .................................................................................................................... 74

Statutes ......................................................................................................................... 76

Local Statutes ............................................................................................................... 76

Foreign Statutes ............................................................................................................ 77

International Laws ......................................................................................................... 77

Internet Sources ............................................................................................................ 77

World Wide Websites .................................................................................................... 77

Academic Papers .......................................................................................................... 79

Notes ............................................................................................................................. 79

vi
 Cyber Contracts in Tanzania under the Electronic Transaction Act,
No.13 of 2015

By

Asherry Magalla

1.0 Introduction
The aim of writing this paper is show how this new piece of legislation have
provide for the protection of electronic contracts in Tanzania. The
development of science and technology has turned almost everything we
know and see upside down in terms of business activities and other
activities that we know. This is simply because know a matter or business
activity can be done in a slightly touch or click of your computer through a
mouse, and then the job or deal is done! This pose a critical problem when
it comes to the legal perspective as most of the laws that we have in most
of developing countries particularly Tanzania are not sufficient enough to
regulate these activities when they are applied unenthusiastically.

In my paper named, “Electronic Contracts in Tanzania: A Detailed

Discussion on the Formation of Electronic Contract in Digital Age”,1


LL.B Degree Holder at the University of Iringa (Formerly known as Tumaini University Iringa
University College) 2009-2012, Masters Holder in Information, Communication and Technology
Law at the University of Iringa 2012-2013.Article and Legal Papers Author at academicians
websites. Book writer at Lambert Academic Publishing Company in German and DL2A – Buluu
Publishing Company in France. Contact details, magallajr@gmail.com
1
Magalla A, (2013), Electronic Contracts in Tanzania: A Detailed Discussion on the Formation
of Electronic Contract in Digital Age. Available at
https://www.academia.edu/3425303/CONTRACTS_IN_DIGITAL_ENVIRONMENT_LAW_AND_
PRACTICE_IN_TANZANIA
1
I wrote about how the law governing contracts in Tanzania (Cap.345,
[R.E.2002]) did not recognize electronic contract, even though there have
been a lot of contracts contracted online. This was before the enactment of
Electronic Transaction Act. No.13 of 2015.
An assessment of the law has been made, and a discussion on the
recognition of electronic agent which to my view, the Act did not provide a
clear meaning of it, in which it may cause some ambiguity and confusion in
the future.

1.1 What is Contract?

An agreement is made up of a proposal by one person and an acceptance
of that proposal by a person to whom the proposal is made. Once a
proposal has been accepted, the proposal and the acceptance change their
character and become promises. According to section 2 (1) (e)2 Thus every
promise and every set of promises, forming the consideration for each
other, is an agreement.
Comments
Consider a situation where Derrick has set his eyes on Cherry and want to
marry her. Derrick will approach Cherry and make a proposal to marry her.
If Cherry loves Derrick she will accept the proposal. At that stage Derrick
and Cherry have reached not just an agreement but a legal agreement as
they have both provide their willing or free consent towards the marriage.

2
The Law of Contract Act [CAP 345 R.E 2002]
2
1.2 The Revolution Brought By the Electronic Transaction Act, 2015
For the purpose of this discussion the term Act shall mean, the Electronic
Transaction Act, No.13 of 2015. This Act provides for the legal recognition
of electronic transactions, e-Government services, the use of Information
and Communication Technologies in collection of evidence, admissibility of
electronic evidence, to provide for the facilitation of use of secure electronic
signatures; and to provide for other related matters.
In order to create the differences between the Law of Contract Act,
[Cap.345, R.E. 2002] and the Electronic Transaction Act of 2015, the
following questions must be answered.

1.2.1 Whether e-contract is a valid contract (recognition)?

The Act have indicate a number of provision which in one way or another
support the existence of electronic contract in Tanzania.
On the part of definition the Act have a number of sections which define a
number of substance which can be viewed in online agreement a per
section 3 and some other relevant sections,3 start with;
Section 21 shows the validity of electronic contract states that;
For avoidance of doubt, a contract may be formed electronically unless
otherwise agreed by the parties. Where an electronic record is used in the
formation of a contract, that contract shall not be denied validity or
enforceability on the ground that an electronic record was used for that
purpose.
Comments
This is the section that provides for the foundation of the electronic contract
that no contract shall be rejected by the person(s) on the fact that such
3
Electronic Transactions Act No.13 of 2015
3
contract is of electronic in nature. So from this section an electronic
contract can be formed and having legal enforceability as long as
fundamental elements has been followed.

1.2.2 Validity of E-Contract on the Part of Definition of Various Terms

"Access" in relation to any computer system, means to gain entry to,
instruct, communicate with, store data in, retrieve data from, or otherwise
make use of any of the resources of the computer system or network or
data storage medium.
Comments
This means that any person who gains control over the computer for the
purpose of engaging him/herself in contractual obligations he cannot later
on refuse such transaction as the fact that such access has been recognize
by the law and can be applicable as evidence before the court of law.

"Addressee” means a person or party who is intended by the originator to

receive an electronic communication, but does not include a party acting as
an intermediary in respect of that electronic communication.
Comments
This shows the recognition of Netizens as addressee or as the cyberspace
citizen. If addressee has been recognized by the law, means any person
would no longer denied his/her participation in online agreement if existed.
But the aspect of e-agent has again being not recognized, as the phrase,
„but does not include a party acting as an intermediary in respect of that
electronic communication’, the term intermediary it is the synonym of the
term agent or mediator or conciliator or go between. This is what made me
to write this book as the concept of e-agent in online contractual agreement
4
is crucial. The question to ask ourselves is that, does the term intermediary
as explained in the definition of the terms addressee include, non-living
things such as computer programs or softwares?

“Computer system” means a device or combination of devices, including

network, input and output devices capable of being used in conjunction with
external files which contain computer programmes, electronic instructions,
input data and output data that perform logic, arithmetic data storage and
retrieval communication control and other functions.
Comments
Computer system is what generate the world of cyberspace in connection
with the internet so that a person can be able to communicate with another
person who wants to engage into a certain legal agreement (contracting
party), searching for a subject matter on the concerned contract, and also
see a number of terms and conditions for such contract so as to meet the
consensus ad idem or to seal the deal.

“Consumer” means any person who enters or intends to enter into an

electronic transaction with a supplier as the end user of goods or services
offered by the supplier.
Comments
This term has been defined to recognize a person who buys a product
through online agreement, in another word a netizen as seen on the above
paragraphs. If the consumer has been recognize online means even the
activities done by such consumer as long as they are allowed by the
country‟s law are recognized.
5
“Data" means any information presented in an electronic form.
Comments
Data can also mean that which is obtained in traditional methods such as
data written in a single paper, but for the purpose of this Act it has included
the data is tat one which has been found in digital environment. The
question to ask ourselves, does this definition sufficient enough to cover
that general meaning of the term data?
We will see the definition of the term data as defined by other jurisdiction in
Part E of the book.

“Data message” means data generated, communicated, received or

stored by electronic, magnetic optical or other means in a computer system
or for transmission from one computer system to another.
Comments
I‟m not sure if data message as defined by the Act; also include messages
found within a cell phone of a person. But I can also conclude that as the
fact that most of persons nowadays use Smartphone, which these phones
have a computer system, then the meaning of data message as defined by
these Act may include messages found in someone‟s cell phone.
Also in section 44 provides that, a data message shall not be denied legal
effect, validity or enforceability on the ground that it is in electronic format.

4
Electronic Transactions Act No.13 of 2015
6
“Electronic communication” means any transfer of sign, signal, or
computer data of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photo electronic, photo optical or in any other similar form.
Comments
Now the electronic communication has been seen in which this facilitate the
formation of electronic contract. As referring to the data message, the term,
„in any other similar form’, in this definition may signify the transmission of
data message through a telephone or cell phone.

"Electronic Gazette" means the Gazette referred to under section 16.5

Whereby in Section 16 it states that;
Where a written law provides that a document be published in the Gazette,
such requirement shall be deemed to have been met if such document is
published in an electronic Gazette.
Comments
Most of the laws after being enacted by the parliament they must be
publish in a Government Gazette. If the law itself can be publish in an
electronic Gazette, then who are you to reject the recognition of electronic
contract?

"Electronic record" means a record stored in an electronic form.

Comments
This definition can also help us to explain more on the earlier definition on
data message. This is simply because data message found in a cellphone

5
Electronic Transactions Act No.13 of 2015
7
or telephone they have been recorded through those electronic devices
hence fit the meaning of the term electronic form.
Also in section 9 of the same Act provide that; where a written law requires
that certain information or document be retained or kept, that requirement
is deemed to have been met by electronic record keeping provided that-
(a) the information contained in that record is in electronic form;
(b) the electronic record is retained or kept in a format in which it was
generated, sent or received, or in a format which can be demonstrated to
represent that information accurately; and
(c) Such electronic record is retained or kept in a form that enables the
identification of the origin and destination of an electronic record or
electronic communication and the date and time when it was first
generated, sent, received or retained.
An obligation to retain or keep a document, record or information in
accordance with subsection (1) shall not extend to any information of which
the sole purpose is to enable the message to be sent or received.

“electronic signature” means data, including an electronic sound, symbol

or process, executed or adopted to identify a party, to indicate that party‟s
approval or intention in respect of the information contained in the
electronic communication and which is attached to or logically associated
with such electronic communication.
Comments
A contractual agreement without significance of consent is not enforceable
by the law. This means such agreement will not hold legal ability in it‟s
performance. This is why in any legal agreement, signature is very
8
important. Before this Act, electronic signature was not legally acceptable
with the exclusion of the decision made by the High Court in the case of
Trust Bank Ltd v. Le-Marsh Enterprises Ltd., Joseph Mbui Magari,
Lawrence Macharia6 in which the court ruled that the electronic evidence is
admissible in Tanzania courts and this was a departure from the strict rule
of best evidence rule.
This case means an electronic signature can be brought before the court of
law as an electronic evidence. Even though these amendments did not
provide for all electronic evidences.
But with this definition now we can see the recognition of electronic
signature in United Republic of Tanzania.

“Electronic transaction” means a transaction, action or set of

transactions of a commercial or non-commercial nature, that takes place
electronically.
Comments
A lot of electronic transactions have been and still conducted by many of
Tanzanian each day. These transactions include electronic contracts.
Instead of going to a shop mall or supermarket now people can buy things
online by a matter of a slightly click on their computers or cell phone touch
screen, and then the transaction is completely. This definition provides not
only commercial transaction but also non-commercial transactions. The act
of being legally recognized provides a good foundation of electronic
contract in Tanzania.

6
H.C., (Com. Div.) at DSM, C.C. No.4 of 2000, (unreported)
9
Also section 5 of the Act7 provide that, where a law requires information or
transaction to be in a prescribed non-electronic form or inwriting, such
requirement shall be met by an information or a transaction entered in
electronic form that is -
(a) Organized in the same or substantially the same way as the prescribed
non-electronic form;
(b) Accessible to the other person for subsequent reference; and
(c) Capable to be retained by the other person.
(2) Subsection (1) shall apply whether the requirement is in a form of an
obligation or where the law only provides consequences for the information
which is not in writing.
This section cement on the validity of transaction in electronic form.

"Originator" means a person from whom the electronic communication

purports to have been sent or generated.
Comments
The term originator comes from the term original. Being original mean
being purely or innovative or creative or inventive. The originator as in
electronic contract is the person who first produces the agreement or
generates the agreement in electronic form or sometimes we can call
him/her the creator or inventor or innovator. For example for those contract
formulated in website, the owner of such website will be considered as the
originator of the offer given to the other person or offer found on such
website. This helps us to know the source of a certain online legal
agreement as agreed by contracting parties.

7
Electronic Transactions Act No.13 of 2015
10
“Place of business” means any place where a party maintains a non-
transitory establishment to pursue an economic activity other than the
temporary provision of goods or services out of a specific location.

Comments
As the fact that the development of science and technology have turn a
world into a single village, a place of business has become a problem for
the netizens. This is simply because it has been argued that internet does
not respect boarders. If internet does not respect bourders, the question is
how would a person determine the place where the contract was
concluded? Or the place where the offer was given or where the offer was
accepted.
By providing a definition of a place of business on how it supposes to be,
this problem has been solved with the help of international agreements on
the issues of jurisdiction.

1.2.3 Acceptance of the Online Agreement (offer)

An offer has been defined as an "expression of willingness to contract on
specified terms, made with the intention that it is to become binding as
soon as it is accepted by the person to whom it is addressed".8
An offer must be sufficiently clear, certain and communicated to the offeree
(the person to whom the offer is made). The acceptance from the offeree
must be equally clear, unequivocal and in response to the offer. And the

8
Treitel, The Law of Contract, 12th Edition, p9.
11
acceptance must mirror the terms of the offer and be communicated to the
offeror (the person making the offer).9
Internet contracts unlike other commercial transactions may not be paper
documents executed by the parties. The formation takes place online but
goods or services are delivered or performed through other channels;
sometimes both the formation and the performance take place entirely
online (software download, access to databases)10.An offer transmitted
through the Internet generally is published on a web site as offer to the
public or invitation to treat sent by e-mail to specific recipients. Generally a
contract is formed when the acceptance is communicated to the offeror.
Any change made by the offeree terminates the original offer and results in
a counter-offer. For online contracts the acceptance is communicated when
it is sent to the electronic address of the offeror11. The order and the
acknowledgement of receipt are deemed to be received when the parties to
whom they are addressed are able to access them12.To form an online
contract through web sites the acceptance must reach the server
containing the web site and in case the contract is through e-mail the
acceptance must reach the server containing the e-mail box.13
It is a common ground that an offeror is at liberty to prescribe to the offeree
the mode of communicating an acceptance.14 However, an authority does
exist for the view that an offer by telegram is evidence of desire for a

9
http://www.seqlegal.com/blog/offer-and-acceptance-online. It is a snapshot of the page as it
appeared on 28 Mar 2016 05:44:50 GMT.
10
Salzano, G (2010), „Internet Contracts: Formation of Online Contracts in the Italian Legislation
and Case Law
11
Article 14 Presidential Decree 445/2000 of Italy.
12
Article 13 Legislative Decree no. 70/2003
13
Ibid
14
Cheshire, et al, (1996), Sweet and Maxwell, 13th Ed.
12
prompt reply, so that an acceptance by post may be treated nugatory. This
was confirmed in Quenerdaine v. Cole.15 In an American case of Lucas v.
Western Telegraph Co16 it was stated that where the offer was sent by
email and offeree replied by telegram, that acceptance would be of no
effect until received by the offeror since the offeror had not authorized such
mode. From the above contention, it may be unreasonable to respond an
offer communicated via e-mail using the post.

1.2.4 Time of dispatch and receipt of electronic

communication
The offer of electronic contract is valid when it has been accepted the
actual party. In this act the parties involving in acceptance are known as
originator17 and the addressee18who act as offeror and offeree.

15
(1883) 32 Weekly Rep. 185
16
(1906) 131 Iowa, 669, 109 N. W 191.
17
"originator" means a person from whom the electronic communication purports to have been
sent or generated.
Th term originator come from the term original. Being original mean being purely or innovative
or creative or inventive. The originator as in electronic contract is the person who first produce
the agreement or generate the agreement in electronic form or sometimes we can call him/her
the creator or inventor or innovator. For example for those contract formulated in website, the
owner of such website will be considered as the originator of the offer given to the other person
or offer found on such website. This helps us to know the source of a certain online legal
agreement as agreed by contracting parties.
18
"addressee” means a person or party who is intended by the originator to receive an
electronic communication, but does not include a party acting as an intermediary in respect of
that electronic communication.
This shows the recognition of Netizens as addressee or as the cyberspace citizen. If addressee
has been recognized by the law, means any person would no longer denied his/her participation
in online agreement if existed. But the aspect of e-agent has again being not recognized, as the
phrase, „but does not include a party acting as an intermediary in respect of that electronic
communication’, the term intermediary it is the synonm of the term agent or mediator or
conciliator or go between. This is what made me to write this book as the concept of e-agent in
online contractual agreement is crucial.

13
1.2.5 Time of Communication
In this Act as per section 22 provides that;
(1) Information in electronic form is dispatched when it enters a computer
system outside the control of the originator or of the person who sent the
electronic communication on behalf of the originator.
Comments
This means once the information has been enters into another person
computer system outside the control of another person particularly the one
who sent it, then at that time the communication is said to be transmitted.
So whether the other person reads it or not, as long as it is out of control of
the one who send it then transmission is complete.

(2) Where the originator and the addressee are in the same computer
system, information in electronic form is communicated when it is capable
of being retrieved by the addressee.
Comments
But sometimes it occurs that both the originator and the addressee are in
the same computer system or using the same computer. So when this
happens the communication is said to be complete when the addressee is
capable of retrieving or accessing such sent information by the originator.

(3) If the addressee has designated a computer system for the

purpose of receiving electronic communication, that information is
received at the time when the electronic communication enters the
designated computer system.

14
Comments
If the addressee has chosen a certain computer system with the intention
of responding to such communication, then the time of receiption is when
such electronic communication enters into such chosen computer system.

(4) When the electronic communication is sent to an information

system of the addressee that is not the designated computer system, that
information is communicated –
(a) At the time when the electronic communication is capable of being
retrieved by the addressee at that address; and
(b) The addressee becomes aware that the electronic communication has
been sent to that address.
Where the addressee has not designated an information system,
receipt occurs when the electronic communication is retrieved by the
addressee, or should reasonably have been retrieved by the addressee.
Comments
Sometimes the addressee may be communicated with the computer
system which is not chosen by him or designated. In that case the
electronic information is said to be communicated when the addressee is
capable of accessing them or when the awareness of such electronic
information reached to his knowledge.

1.2.6 Acknowledgement of the Online Acceptance

The acceptance can also be acknowledged as provided in section 23 of the
Act, that;
15
Section 23
Acknowledgement of receipt of an electronic communication may, where
the originator has not agreed with the addressee on the form or method, be
given by-
(a) Any electronic communication by the addressee, automated or
otherwise; or
(b) Any act of the addressee, sufficient to indicate to the originator that the
electronic communication has been received.
Comments
The question is does the term “automated or otherwise” in part (a) of
subsection (1) of section 23 include e-agent or software programs which
acted on behalf of the addressee?

(2) Where the originator has stipulated that an electronic communication

shall be binding only on receipt of an acknowledgment, and the
acknowledgment has not been received, the originator shall -
(a) within the time specified or agreed or, if no time has been specified or
agreed to within a reasonable time, then the originator may give notice to
the addressee stating that no acknowledgment has been received by him
and specifying reasonable time by which the acknowledgment shall be
received by him;
(b) Within the aforesaid time limit, he may after giving notice to the
addressee, treat the electronic communication as though it has never been
sent.
Comments

16
Subsection (2) (a) and (b) indicate the situation whereby the receipt of an
acknowledgment, and the acknowledgment has not been received by the
originator, hence the offer automatically may be treated as terminated or it
may continue as per agreement agreed upon the parties to a contract.

1.2.7 Whether there is satisfaction of e-signature

As I stated before that, we somehow had the recognition of electronic
signature through recognition of electronic evidence as discussed in the
case of Trust Bank Ltd v. Le-Marsh Enterprises Ltd., Joseph Mbui Magari,
Lawrence Macharia19 in which the court ruled that the electronic evidence is
admissible in Tanzania courts and this was a departure from the strict rule
of best evidence rule.
Comments
However, this amendment was not sufficient enough to solve the problem
of electronic signature in electronic contract as section 40A, 34 and 78A of
the Evidence Act as amended by the Written Law (Miscellaneous
Amendments) of 2007 did only provide the admissibility of electronic
evidence mostly in criminal proceedings.
Now through this Act specific provision regarding to the recognition and
securing of electronic signature have been provided.
When we look on Section 6, 7 and 8 of the Act, they gave us a light on the
recognition of the electronic signature, as stated below;

1.2.8 On Electronic signature (s.6);

Where a law requires the signature of a person to be entered, that
requirement shall be met by a secure electronic signature made under this

19
H.C., (Com. Div.) at DSM, C.C. No.4 of 2000, (unreported)
17
Act. The requirement for an electronic signature made under subsection
(1) shall be met if-
(a) the method is used to identify the person and to indicate the intention
of that person in relation with information communicated; and
(b) at the time the method was used, that method was reliable and
appropriate for the purposes for which the information was communicated.
In securing the electronic signature, parties to a contract may agree to use
a particular method of electronic signature as they deem appropriate unless
it is otherwise provided by law.
Comments
This section signifies the importance of e-signature that the person cannot
be denied legal enforceability of the contract that he/she entered with
another simply by the fact that such signature was electronically made. It
further stated that in order for such electronic signature to be valid, the
intention and method used to recognize such person in corresponding with
such electronic information must be approved. And also such method must
be consistent for the purpose of communicating such electronic
information.

1.2.9 On securing electronic signature (s.7 & 8);

An electronic signature shall be deemed to be secure if it-
a) is unique for the purpose for which it is used;
b) can be used to identify the person who signs the electronic
communication;
c) is created and affixed to the electronic communication by the signer;
d) is under control of the person who signs ; and

18
e) Is created and linked to the electronic communication to which it relates
in a manner such that any changes in the electronic communication would
be revealed.
A secure electronic signature shall be deemed to have been applied if it is-
(a) applied by the holder of the secure electronic signature; and
(b) Affixed by the holder with the intention of signing or approving the
electronic communication.
Comments
The above section provides for the nature of electronic signature, on how it
suppose to be secured for the purpose of authentification of the onlin
agreement, mostly on who own it, how it differentiate the owner of such
signature to others (on the purpose of who control), and any other
indications that would provide for the security of the entered online
agreement.
In Good Challenger Navegante SA v Metalexportimport SA20 the Court of
Appeal held that for the purposes of s30 of the Limitation Act 1980 a typed
name on a telex was a signature. The Court held that “…the typed name of
the sender at the end of the telex not only identified the maker but led to
the inference that he had approved the contents”. This does not apply to all
instances of typed names, however, and a formal contract with typed
names at the end with spaces underneath where the parties are expected
to write their names would be unlikely to fall within the reasoning given in
the Good Challenger case.
This case resemble to the definition given by the Act on electronic
signature that;“electronic signature” means data, including an electronic

20
(2004)Volume 1
19
sound, symbol or process, executed or adopted to identify a party, to
indicate that party‟s approval or intention in respect of the information
contained in the electronic communication and which is attached to or
logically associated with such electronic communication.

1.2.10 The legal consequences for the creator of the signature

The person who creates the electronic signature has a number of legal
consequences if he/she fails to do the following as provided in section 12 of
the Act;
A person who relies on an electronic signature shall bear the legal
consequence of failure to take reasonable steps to verify the-
(a) Authenticity of a electronic signature; or
(b) Validity of a certificate or observe any limitation with respect to the
certificate where an electronic signature is supported by a certificate.
Comments
The person who creates the signature must follow a certain procedures in
order for his/her signature to be legally accepted. Failure to do so, he/she
may suffer some of the legal consequences. Through these sections it is
clear without a reasonable doubt that the electronic signature is acceptable
by the Tanzanian law.

1.2.11 How e-contract terms are valued?

Contractual terms may comprise express terms, such as those embodied in
a standard form pre-printed contract (or its electronic equivalent click wrap
agreement); implied terms, which are incorporated on the basis of the
circumstances, e.g. advertisements that are deemed to constitute an offer,
or part of an offer, or terms that are incorporated by consumer protection

20
legislation; and finally terms that are incorporated by reference to another
document21.
In the paper based world of contracts, courts have generally upheld the
practice of incorporating terms by reference where the party relying upon
such terms has notified the other party of the terms and such terms are
reasonably accessible to the other party22. The online world is particularly
well-suited to the practice of incorporating terms by reference as it is quick
and easy to insert hyperlinks into text23. The Supreme Court of Canada
recently contemplated the validity of introducing terms via hyperlink in the
case of Dell Computer Corp. v. Union des consommateurs24. In upholding
the Validity of this practice the court emphasized that the terms and
conditions must be reasonably accessible and was of the opinion that a
hyperlinked document meets that standard25.
In this Act, e-contracts have been given value through Notarisation,
acknowledgement and certification of the document involves in such
agreement, this is through section 10 that;
Where the law requires-
(a) a signature, statement or a document to be notarized, acknowledged,
verified or made under oath, that requirement shall be deemed to be met if
the electronic signature of the person authorized to perform those acts is
attached to, incorporated in or logically associated with an electronic
signature or a data message; or

21
John S. Foster (2000), “Electronic Contracts and Digital Signatures
22
Orpwood, R, (2008), “Electronic Contracts: Where We.ve Come From, Where We Are, and
Where We Should Be Going” International In-house Counsel Journal Vol. 1, No. 455.466
23
Visit http://www.michaelgeist.ca/content/view/2141/135/.
24
2007 SCC 34.
25
www.karimsyah.com/imagescontent/article/20050922170958.pdf.
21
(b) a person to provide a certified copy of a document and that document
exists in an electronic form, the requirement shall be met if the person
provides a certified print-out of the document.
Comments
Sometimes the law may require that the said created signature to be
authenticated that such signature is to be used by the creator in contracting
issues as to be included in electronic communication. If that stands as the
requirement then such procedures have to be considered. Without
consideration of the above, means that such electronic signature cannot
prevail.
And sometime the law may require some other requirements in approving
the existence of online agreement.
Section 11 states that; where the law requires –
(a) Submission of multiple copies of a document to a single addressee at
the same time, that requirement is met by submission of a single electronic
communication that is capable of being reproduced by that addressee;
(b) a seal to be affixed and signature to a document and that law does not
prescribe the method or form by which such a document may be sealed by
electronic means, that requirement shall be met if the document is sealed
and signed electronically by a person who was required to seal and sign
that document; or
(c) a person to send an information or a document by post or a similar
service, that requirement shall be met if that information or document is
sent in an electronic form.
Comments

22
This means that sometimes the law may requires that a certain legal
requirements must be fulfilled so that a certain online agreement may have
legal enforceability. As stated above things such as submission of multiple
copies of a document to a single addressee at the same time, this
requirement is sufficient only by submission a single electronic
communication reproduced by the addressee. The requirement of signature
to a document, such requirement is sufficient when it is sealed or signed
electronically and lastly is on the mode of transmission of document, such
transmission is legally accepted if it is transmitted or posted in electronic
form.

1.2.12 Online mistakes or input errors.

Online agreements have a lot of issues particular when it comes to
mistakes conducted by either party to a contract. Things like mistakes in
subject matter involved within a contract, typing errors in terms of terms
and conditions of the contract and the likes.
For instance, changes to the contract and errors. The use of emails in
contracting process has given rise to several legal issues: for instance, who
must be responsible for an error in the course of e-contracting.
Also the authentication and attribution issues. Separation is an obvious
question since the electronic environment makes a possible face to face
encounter redundant. The other party may be a minor, unauthorized or
even an impostor.26
In responding with online mistakes or errors, the Act provide a room of
correction in case of any errors or mistakes made by the parties to a

26
Wilson S, (1998), Current Issues in the rollout of a national authentication framework;
information industry outlook conference
23
contract. However, this room of correction has been created in
corresponding with the errors and mistakes made between parties to a
contract and interactive systems or between interactive systems.

Section 26
(1) A contract formed by the interaction of an interactive system and a
person, or by interaction of interactive systems, shall not be denied legal
effect, on the ground that no person reviewed each of the individual actions
carried out by the interactive systems.
Comments
This subsection entails that any contract formed between the person and
the interactive system or between two different interactive systems cannot
denied the legal enforceability by the fact that no one assessed the
activities done by those interactive systems.
The question to ask ourselves is that, does this interactive system includes
or means computer programs or software programs? We will see further on
the answer of this question on the particularly question concerning e-agent.

(2) An interactive system shall provide an opportunity for a person to

correct an input error made in an electronic communication exchanged with
the interactive system of another party.
Comments
Where there are some errors during creation of the contract through
electronic communication, the interactive system may provides for the
correction for the wrong information entered when the exchange of the
information between these interactive systems occurred.
24
 (3) Where a person makes an input error in an electronic communication
exchanged with the interactive system of another party and an interactive
system does not provide the person with an opportunity to correct the error,
that person has the right to withdraw the electronic communication in which
the input error was made if the person-
(a) notifies the other party of the error as soon as practicable after having
learned of the error and intends to cancel the contract or cancel the input
error;
(b) takes reasonable steps, to comply with instruction by the other part to
return the goods or services received as a result of the error, or to destroy
the goods or services, or to cancel the input error; and
(c) Has not used or received any material benefit or value from the goods
or services, or the input error, from the other party.
Comments
When the interactive system of one person fails to provide an opportunity to
the interactive system of another person for the errors occurred, such
person may decide to terminate the contract by notifying the other person
on the error occurred as soon as such error occur and also inform him on
the intention to cancel either the contract or such occurred error. Also if
there are any steps needed to be taken for such cancellation of the
contract, then such instruction must be followed. The person who wants to
cancel the contract must not be benefit from such error occurred.

25
(4) A person who has paid for goods or services prior to exercising a right
under subsection (1), is entitled to a full refund of such payment within thirty
days upon cancellation of the transaction.
Comments
If there was any payment for the goods or services formerly made by the
person who cancels the contract, then such payment of goods or services
must be return within thirty (30) day form the day where the contract was
cancelled.

(5) Nothing in this section shall affect the application of any law that may
govern the consequences of any errors made during formation or
performance of the type of contract in question other than an input error
that occurs in the circumstances under subsection (3).
Comments
If there is any other law that may preside over the effect of any errors made
at the time when the contract was formed or performed, with the exceptions
of input errors that occurs in the circumstances under subsection (3) of
section 26, then such law will prevail or be used. Or any law can be used
towards the effects of the cancellation of the contract as long as the error
occurred does not fall under section 26(3).

1.2.13 Electronic evidence on online agreement

Admissibility of data message is covered under Section 18 of the Act, that:
1. In any legal proceedings, nothing in the rules of evidence shall apply
so as to deny the admissibility of data message on ground that it is a data
message.

26
Comments
There will be no legal proceedings that will be used to reject the
acceptability of data message on the fact that it is data message. So a
person with data message as evidence before the court of law, can use
such data message as the evidence relating to such electronic
communication, particularly electronic contract.

2. In determining admissibility and evidential weight of a data message,

the following shall be considered-
(a) the reliability of the manner in which the data message was
generated, stored or communicated;
(b) the reliability of the manner in which the integrity of the data message
was maintained;
(c) the manner in which its originator was identified;
(d) and
(e) Any other factor that may be relevant in assessing the weight of
evidence.
Comments
Subsection (2) provides for the requirements to be considered when a
person wants his/her data message to be considered as admissible before
the court of law. Things like the manner in which the message was
retrieved, kept and communicated, the veracity or reliability or
authentification of the message, and the proof that such message is from
the originator or the originality.

27
3. The authenticity of an electronic records system in which an electronic
record is recorded or stored shall, in the absence of evidence to the
contrary, be presumed where-
(a) there is evidence that supports a finding that at all material times the
computer system or other similar device was operating properly or, if it was
not, the fact of its not operating properly did not affect the integrity of an
electronic record and there are no other reasonable grounds on which to
doubt the authenticity of the electronic records system;

(b) it is established that the electronic record was recorded or stored by a

party to the proceedings who is adverse in interest to the party seeking to
introduce it; or

(c) it is established that an electronic record was recorded or stored in the

usual and ordinary course of business by a person who is not a party to the
proceedings and who did not record or store it under the control of the party
seeking to introduce the record.

Comments
This subsection also provide for the authentification of the data message,
that at the time when the message was retrieved such electronic device
was in good manner in terms of functionality. And if such electronic device
did not function properly, then there must be a prove that such malfunction
did not affect the appropriateness or suitability and authentification of such
electronic record systems. Also only parties to the contract are allowed to

28
bring such piece of evidence particularly the aggrieved party and no other
party than them.

4. Subsection 4 provide for the set of standard required for this electronic
record to be admissible, that;
For purposes of determining whether an electronic record is admissible
under this section, an evidence may be presented in respect of any set
standard, procedure, usage or practice on how electronic records are to be
recorded or stored, with regard to the type of business or endeavors that
used, recorded or stored the electronic record and the nature and purpose
of the electronic record.
Comments
Here we found that, such piece of evidence may be presented in any form
or standard or mode of practice and usage or which prescribes the manner
in which such evidence must be recorded or preserved. The rationale of
recording such electronic records is crucial when presenting it. This is to
maintain the character of the recorded evidence. If the reason for such
recording is not reasonable then the nature and character of such recording
cease to exist.
This recognition of data message can give us more clarification on the
validity of the messages found within a cell phone or telephone.

29
1.2.14 Amendments of the Evidence Act, [Cap.6, R.E. 2002]
The Act also has amended several provisions of the Evidence Act, [Cap.6,
and R.E. 2002] as follows;
As per section 42 of the Act
The principal Act is amended in section 3 by deleting the definition of the
term “document” and substituting for it with the following:
“document” means any writing, handwriting, typewriting, printing, Photostat,
photography, computer data and every recording upon any tangible thing,
any form of communication or representation including in electronic form,
by letters, figures, marks or symbols or more than one of these means,
which may be used for the purpose of recording any matter provided that
recording is reasonably permanent and readable.

Compare with the earlier section before these amendments which

states that:
"Document" means any writing, handwriting, typewriting, printing, photostat,
photograph and every recording upon any tangible thing, any form of
communication or representation by letters,
figures, marks or symbols or by more than one of these means, which may
be used for the purpose of recording any matter provided that such
recording is reasonably permanent and readable by sight.
Comments
The two terms have been added to this definition, computer data and every
recording upon any tangible thing, any form of communication or
representation including in electronic form. This is what reveal the

30
recognition of electronic document by adding computer data and anything
relating to electronic communication.

As per section 43 of the Act

Section 19 of the principal Act (Evidence Act, [Cap.6 R.E. 2002]) is
amended by inserting the word “electronic” immediately after the word
“oral”.
The former section stated that;
An admission is a statement, oral or documentary, which suggests any
inference as to a fact in issue or relevant fact and which is made by any of
the persons and in the circumstances hereinafter mentioned.
Comments
This means that, section 19 of Cap.6 will be;
An admission is a statement, oral or electronic documentary, which
suggests any inference as to a fact in issue or relevant fact and which is
made by any of the persons and in the circumstances hereinafter
mentioned.
This creates the new admission of evidence and that is an electronic
admission of the evidence through admission of electronic documentary as
required by section 43 of the Act.

As per section 44 of the Act

Section 34 of the principal Act (Cap.6) is amended by inserting the word
“electronic” immediately after the word “written”.

31
Comments
Section 34 of the principal Act (Cap.6) stated that;
Statements, written or oral, of relevant facts made by a person who is dead
or unknown, or who cannot be found, or who cannot be summoned owing
to his entitlement to diplomatic immunity, privilege or other similar reason,
or who can be summoned but refuses voluntarily to appear before the court
as a witness, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense
which in the circumstances of the case appears to the court to be
unreasonable, are themselves admissible in the following cases

This means from the amendment the section will be read as;
Statements, written or electronic or oral, of relevant facts made by a person
who is dead or unknown, or who cannot be found, or who cannot be
summoned owing to his entitlement to diplomatic immunity, privilege or
other similar reason, or who can be summoned but refuses voluntarily to
appear before the court as a witness, or who has become incapable of
giving evidence, or whose attendance cannot be procured without an
amount of delay or expense which in the circumstances of the case
appears to the court to be unreasonable, are themselves admissible in the
following cases
This creates the existence of electronic statement as required by section 44
of the Act.

32
As per section 45 of the Act provides that
Section 34B of the principal Act (Cap.6) is amended by inserting the words
“or electronic” between the words “written” and “statements” wherever” they
appear in that section.
Comments
Section 34B of the principal Act stated that;
(1) In any criminal proceedings where direct oral evidence of a relevant fact
would be admissible, a written statement by any person who is, or may be,
a witness shall subject to the following provisions of this section, be
admissible in evidence as proof of the relevant factcontained in it in lieu of
direct oral evidence.

This means from the amendment the section will be read as;
(1) In any criminal proceedings where direct oral evidence of a relevant fact
would be admissible, a written electronic statement by any person who is,
or may be, a witness shall subject to the following provisions of this section,
be admissible in evidence as proof of the relevant fact contained in it in lieu
of direct oral evidence.
And this inserted word is added between the two words, written and
statement in any of the phrase or paragraph that will contain such two
words. This creates the existence of written electronic statement as
required by section 45 of the Act.

33
As per section 46 of the Act provides that;
The principal Act (Cap.6) is amended by adding a new section 64A as
follows:
(1) In any proceedings, electronic evidence shall be admissible.
Comments
Once there was no section 64A in the Evidence Act [Cap.6. R.E. 2002] but
for the first time this section has been added. The significant of this section
is that it portrays that no one or body can reject the admissibility of
electronic evidence. Hence through this section, now electronic evidence is
admissible before the court of law.

(2) The admissibility and weight of electronic evidence shall be determined

in the manner prescribed under section 18 of the Electronic Transaction
Act, 2015.
Comments
As I said earlier that, Once there was no section 64A in the Evidence Act
[Cap.6. R.E. 2002] but for the first time this section has been added. The
significant of this section is that it reflects back to section 18 of the
Electronic Transaction Act, 2015. What does this section entails? Please
go back to the part of electronic evidence in online agreement (4.3.6)
but in a nutshell it entails that there will be no legal proceedings that will be
used to reject the acceptability of data message on the fact that it is data
message. So a person with data message as evidence before the court of
law can use such data message as the evidence relating to such electronic
communication, particularly electronic contract.

34
(3) For the purpose of this section, “electronic evidence” means any data or
information stored in electronic form or electronic media or retrieved from a
computer system, which can be presented as evidence.”
Comments
This part provides for the good definition of what electronic evidence
means despite the fact that such definition is covered under the part of
definitions of the Act.
Even though in the definition part of the Act, the definition of electronic
records has been provided but electronic records cannot always act as
electronic evidence. This is simply because in order for the electronic
records to be presented before the court it needs to be presented as
evidence and not mere opinions, suggestions or hearsay. This is why I am
saying that not all electronic records can act as electronic evidence before
the court of law but all electronic evidence can act as electronic record
before the court of law or in the other meaning, not all electronic records
are electronic evidence but all electronic evidence are electronic records.

1.2.15 Jurisdiction of the courts and choice of law

Imposing the traditional common law principles of jurisdiction to the
borderless world of Internet transactions has proved to be extremely
challenging for the courts and has resulted in the application of a myriad of
different tests and principles.
It has been the subject of much scholarly debate, as one author comments:
As long as the laws of each jurisdiction differ in material
ways from that of others, questions will continue to arise in
interpretation and enforcement where there is any cross
border element of an electronic transaction27.
27
www.karimsyah.com-retrieved on 30th Jan 2016
35
In Sayeediv. Walser28a U.S. trial court refused to exercise jurisdiction over
an eBay transaction between two individuals on the basis that one sale
without more, does not constitute sufficient purposeful a ailment to satisfy
the minimum contacts necessary to justify summoning across state lines, to
a New York court, the seller of an allegedly nonconforming good.
More recently, courts have looked towards effects or targeting tests29
determining jurisdiction on the basis of the actual impact of the action in the
locality.30 The principle was set out in the pre Internet case of Calder v.
Jones31 that the fact that the action had an effecting the other jurisdiction
was factored into the equation in order to determine whether jurisdiction
existed in that forum. Under this effects test, jurisdiction is determined by
analyzing the effects intentionally caused within the forum by a party‟s
online conduct outside the forum32.
A way that governments consciously attempt to avoid problems of diversity
of jurisdiction is to harmonize the law applicable across jurisdictions, so that
it will not matter whose law applies or what forum will apply it33.
In a contractual dispute it is common for the parties to have elected for
disputes to be subject to the jurisdiction of the courts of a particular state.

28
2007 NY Slip Op 27081.
29
Information Corporation v. American Infometrics (D. Md. April 2001); Panavision International
v.Toeppen (1998), 141 F.3d 1316 (9th Cir); Easthaven Ltd. v. Nutrisystem.com Inc.(2001) 55
OR 3d 334 (Ontario Superior Court of Justice).
30
Mary Paterson, (2004), „Following the Right Lead: Gutnick and the Dance of Internet
Jurisdiction‟, Can Law Journal &. Tech. 49.
31
465 U.S. 783 (1984).
32
Julia Alpert Gladstone, Determining Jurisdiction in Cyberspace: The .Zippo. Test or the Effect
Test? Bryant College, Smithfield, Rhode Island, USA available at
http://www.informingscience.org/ proceedings/ IS2003Proceedings/docs / 029Glads.pdf
33
Gregory J. D, (2005), Internet Jurisdiction: Where Are We Now? Presentation to the Toronto
Computer Lawyers, available at www.tclg.org/meetings/2005_nov.ppt
36
The parties to a B2B contract are generally free to choose in which
jurisdiction a dispute may be litigated (although there are a few
exceptions).34
In Tanzania the issue of jurisdiction is discussed also in the current Cyber
Crime Act35 which provide the matter of jurisdiction that;
(1) The courts shall have jurisdiction to try any offence under this Act
where an act or omission constituting an offence is committed wholly or in
part -
(a) Within the United Republic of Tanzania;
(b) On a ship or aircraft registered in the United Republic of Tanzania;
(c) By a national of the United Republic of Tanzania;
(d) By a national of the United Republic of Tanzania who resides outside
the United Republic of
Tanzania, if the act or omission would equally constitute an offence under a
law of that country;
Or
(e) By any person, irrespective of his nationality or citizenship, or location,
when the offence is:
(i) Committed using a computer system, device or data located within
United Republic of Tanzania; or
(ii) directed against computer system, device or data or person located in
United Republic of Tanzania.
(2) In this section the term “court” means court of competent jurisdiction.

34
http://www.seqlegal.com/blog/internet-contracts-and-jurisdiction. It is a snapshot of the page
as it appeared on 19 Mar 2016 11:43:04 GMT.
35
2015
37
Comments
Among other things, the section provide that, the court shall try any offence
which was committed as a wholly or part in Tanzania or the offence was
tried outside Tanzania but the offence tackle and create an offence under
the law of the country.36
But this kind of jurisdiction covers only criminal offences and not civil
offences unless otherwise the offence somehow falls under criminal liability
such as fraud in contract, or unlawful access to computer system of
another person or Illegal system interference or forgery. Those offences
can fall under criminal liability of which the current Cyber Crime Act37
provides for their legal liability, hence in terms of jurisdiction the Cyber
Crime Act38 can be apply in such circumstances. When you look at the Act,
no provision is provided in regarding to the matter of jurisdiction when it
comes to disputes between two parties of different jurisdiction.

1.2.16 The Legal Requirement for Consensus ad idem in Contract

As pointed out earlier, consensus ad idem39is a fundamental concept in the
law of contract. Where parties are at cross purposes there is absence of
consent; there is no consensus ad idem and the agreement is void40. Thus,
enforceable rights or obligations to parties in a contract only arise when a
mutually binding contract is concluded, i.e., when the minds of the parties
to a contract meet. But in some cases courts may find existence of

36
Section 6 of The Cyber Crimes Act,2015
37
2015
38
2015
39
section 13 of the Law of Contract
40
Nditi. N. N. N, at Pp 174.
38
enforceable agreements in the absence of consensus ad idem basing on
some factors like reasonable reliance41.
It may be difficult to ascertain consent of the parties in an online
environment and for web-based agreements, especially the shrink-wrap
and browse-wrap agreements where the possibility of negotiation is
excluded42.
If the court is to construe sections 10 and 1343insisting on consensus ad
idem, it may be intricate to enforce such agreements.
Comments
The aspect of consensus ad idem has been explain within the Act on the
aspect of acceptance between the originator and the addressee in respect
to electronic communication but not in the aspect of web-based
agreements. This has become a problem to many of the states legislations
on electronic contract, particularly on agreements such as shrink-wrap and
browse-wrap agreements which lacks assent from the party required to
accept the contract.44 For example how can a consent being determined if
the contract binds a person before reading the terms and conditions? Even
though in some of the courts they allow these nature of contract to exist but
it happening in narrow and still these nature of contracts have create some
legal question on their validity.
41
Smith v. Hughes (1871) LR 6 QB 597
42
Kaustuv. M. D, Forum-Selection Clauses in Consumer Click wrap and Browse wrap
Agreements and the Reasonably Communicated Test 77 (2) Washington Law Review, 481 at
499-500 (2002).
43
The Law of Contract Act
44
Shrink wrap contracts are license agreements or other terms and conditions of a (putatively)
contractual nature which can be read and accepted by the consumer only after the consumer
opens the product. The term refers to the shrink wrap plastic wrapping used for coat software
boxes, because such packaging makes it impossible for the buyer to have read the contract
before completing the purchase. These contracts are not, however, limited to the software
industry (http://www.wikipedia//meaningofshrinkwrap.com (visited on 8th Jan 2013))
39
1.2.17 The Issues of Time and Place of Online Contract
The aspect of time is normally an important aspect in contract and
specifically in electronic contracts. Time resolves questions regarding
competence acceptance, i.e., when the parties mutual rights and
obligations become effective or when title or risk passes from one party to
another in a contract45. It also helps in choice of law that should govern the
contract especially in a contract involving parties based in different
jurisdictions46.Suppose one party accepts an offer to buy made by another
party to him and communicates his acceptance by e-mail. The question
may arise as to the time when the contract was formed. In view of this
irregularity it becomes necessary to examine whether the existing theories
and rules governing communications of offer and acceptance can apply to
cyber contract.

1.2.18 Dispatch and Receipt of E-Communication

As per Article 10 United Nations Convention on the Use of Electronic

Communications in International Contracts Chapter III - Use of Electronic
Communications in International Contracts47 states that;
1. The time of dispatch of an electronic communication is the time when it
leaves an information system under the control of the originator or of the
party who sent it on behalf of the originator or, if the electronic
communication has not left an information system under the control of the

45
http://www.ictjournal.washington.edu/Vol3/a012Kierkegaard.html. visited on 3th March 2014
46
Khan-Freud, O, (1970), “Book Review” The American Journal of Comparative Law, 429-441 at
435.
47
United Nations Convention on the Use of Electronic Communications in International
Contracts Chapter III - Use of Electronic Communications in International Contracts UNITED
NATIONS PUBLICATION Sales No. E.07.V.2 ISBN 978-92-1-133756-3
40
originator or of the party who sent it on behalf of the originator, the time
when the electronic communication is received.

2. The time of receipt of an electronic communication is the time when it

becomes capable of being retrieved by the addressee at an electronic
address designated by the addressee. The time of receipt of an electronic
communication at another electronic address of the addressee is the time
when it becomes capable of being retrieved by the addressee at that
address and the addressee becomes aware that the electronic
communication has been sent to that address. An electronic
communication is presumed to be capable of being retrieved by the
addressee when it reaches the addressee's electronic address.

3. An electronic communication is deemed to be dispatched at the place

where the originator has its place of business and is deemed to be received
at the place where the addressee has its place of business, as determined
in accordance with article 6.
Comments
When you look at this Article 10, it is the same as section 24 of the Act on
the aspect of place of dispatch and receipt of Electronic communication
Section 24
It describe about place of dispatch and receipt of electronic communication
that;
(1) Unless otherwise agreed between the originator and the addressee, an
electronic communication is deemed to be dispatched at the place where

41
the originator has its place of business and is deemed to be received at the
place where the addressee has its place of business.
The agreement between the parties to a contract will be deemed to be
matured if it has been communicated at the place where the originator has
its place of business and deemed to be received at the place where the
addressee has its place of business. This describes the manner in which
the offer has to be accepted particularly on the place whereby such offer
must be communicated as accepted.
(2) Subsection (1) shall apply-
(a) Even if the originator or addressee was not at his usual place of
business; and
(b) To determine the place where a contract was concluded for the
purposes of taxation.
Comments
As I stated earlier on the part of definition that the definition of place of
business is very crucial to determine the maturity of the online contract.48

(3) For the purpose of subsection (1), if the originator or the addressee-
a) has more than one place of business, the place of business is:

48
As the fact that the development of science and technology have turn a world into a single
village, a place of business has become a problem for the netizens. This is simply because it
has been argued that internet does not respect boarders. If internet does not respect bourders,
the question is how would a person determine the place where the contract was concluded? Or
the place where the offer was given or where the offer was accepted.
By providing a definition of a place of business on how it supposes to be, this problem has been
solved.

42
(i) that which has the closest relationship to the underlying transaction
having regard to the circumstances known or contemplated by the parties
at any time before or at the conclusion of the contract; or
(ii) Where there is no underlying transaction, the principal place of
business.
Comments
This happens when the originator or addressee have more than one places
of conducting his/her business, and the best way to determine which place
is suitable for the communication to be matured is through reasonableness
as described above that if no place has been mention within the contractual
agreement for the communication to be held then the principal place of
business shall be used as the area the conclude the communication.

(b) Does not have a place of business, the place of business shall be his
habitual residence.
(4) If a body corporate does not have a place of business, the place of
business shall be the business address of the body corporate or the place
where it is incorporated or otherwise legally constituted.
Comments
If neither of the originator nor addressee have no place of business, then
their normal place of living shall be regarded as a good places for the
communication to take place. In terms of the company or a corporate body
have not stipulated the area whereby the communication must be held,
then the place mentioned when such corporate bidy was corporate or
formed, is suitable for the communication to be conducted.

43
(5) This section shall apply notwithstanding that a place where a computer
system supporting an electronic address is located is different from the
place where the electronic communication is deemed to be dispatched or
received.
Comments
The above section of the Act shall be used or applied despite the fact that a
place where a computer system supporting an electronic address is located
is different from the place where the electronic communication is deemed
to be transmitted or acknowledged.

1.2.19 Time and Place of Online Contract Formation

Contracts formed online are legally binding and enforceable. But there are
more issues to consider when buying and selling online. For example:
When is a contract actually formed? What are the essential terms? What
consumer protection legislation affects online? What other issues should
you consider and how can you resolve disputes when different countries
are involved?
A contract would be formed once a customer makes an offer by placing an
order and the supplier accepts this offer. An advertisement on a website
will not generally constitute a formal offer to contract (but take care
designing the advertisement).49
Comments
The capacity to structure contracts online has changed the manner
commerce is conducted. In the United Republic of Tanzania, currently all

49
http://www.duport.co.uk/advisor/legal/legal-advice/contracts-and-internet.php. It is a snapshot
of the page as it appeared on 13 Mar 2016 21:57:33 GMT.
44
types of contract can be made electronically with exception of few as per
law requirements are still made paper based or physical contracts.

Section 25 of the Act provides for the time and place whereby the contract
is said to be formed.
Section 25
(1) Where parties conclude a contract electronically, that contract shall be
formed at the time and place where acceptance of the offer becomes
effective.
Comments
At the time when the acceptance of the offer of the contract through
electronic communication is complete, such time is treated as the time of
contract formation. This is the same apply in terms of place of contract
formation, that at the place when the acceptance of the offer of the contract
through electronic communication is complete, such place is treated as the
place where the contract was formed.

(2) An offer in the form of an electronic communication becomes effective

at the time it is received by the offeree.
Comments
Once the offer in electronic form has been received by the offeree or
addressee or the originator, depending on the nature of the offer whether
normal offer or counter-offer, then such offer is said to be efficient or
effective at the time when offeree or addressee or the originator depending
on the nature of the offer whether normal offer or counter-offer, receive
such offer.
45
1.2.20 The Aspect of E-Agent
The issue here is whether computer programs or software program can act
as an agent in electronic form.
In section 26 of this Act describe something relating to interactive
systems.50 Surprisingly, on the part of definition of this Act interactive
system(s) is not defined to give the meaning of what these interactive
systems composed.
But what the Act define is interactive message system, that;
“Interactive message system” means an automated system, or other pre-
programmed system, used to, initiate an action, respond to electronic
communications, or generate other performances in whole or in part
without review or intervention by a party each time an action is initiated or a
response is generated by the system.
Comments
By this definition particularly through these terms, automated system, or
other pre-programmed system and system, means these message have
been programmed with a certain program system. By ordinary knowledge,
such programmed system could be computer program or software
systems. In that case, we can say that interactive system may include
computer program or software system.
That been the case, now our question is whether those computer programs
or software systems through the actions carried out by them acts as an
agents or electronic agents.

50
Please see on the part of online mistakes and input errors.
46
By looking at the definition of agent in the Law of Contract Act,
[Cap.345.R.E. 2002]51
An "agent" is a person employed to do any act for another or to represent
another in dealings with third persons and the person for whom such act is
done, or who is so represented, is called the "principal".
Comments
This means that, as per our contract law, an agent must be a person and
not a computer program or software program as the fact that the current
law on electronic transaction it is not clear on the issue of e-agent.
According to 15 USCS § 7006 (3), the term “electronic agent” means “a
computer program or an electronic or other automated means used
independently to initiate an action or respond to electronic records or
performances in whole or in part without review or action by an individual at
the time of the action or response.”
So for the American law computer program or an automated system can
act as electronic agents and I wonder why this definition or the likes, do not
appear in our new law on electronic transaction.52
As when I said that the Act is not clear on the concept of e-agent, it means
the Act does not provide a provision for the e-agent.

51
Section 134
52
The Electronic Transaction Act No.13 of 2015.
47
Looking at section 19 of the Act it provides that;
This electronic communication shall be construed as being communicated
by the originator if;53it is sent by-
(a) The originator;
(b) a person who is duly authorised by the originator to communicate in
electronic form in respect of that data message; or
(c) Computer system programmed by or on behalf of the originator to
operate automatically.
Comments
The section provides for the person who authenticates the transmission of
the communication. That such communication is treated as communication
if it has been transmitted by the originator him/herself or any other person
who has been lawful permitted by the originator to perform such act, or
through a computer system on behalf of the originator to operate
automatically.
By looking at subsection (c) of section 19 of the Act, the phrase, „computer
system programmed by or on behalf of the originator to operate
automatically‟, means electronic communication is treated valid if it was
sent by a computer system programmed by the originator to act on behalf
of him/her.
This means that a computer system can act as an agent to the originator to
respond to what has been programmed to respond, but within the same Act
on the part of the interpretation, the term addressee has been interpreted to

53
As provided by section 19 of the Act.
48
exclude intermediary part54 as the phrase, „but does not include a party
acting as an intermediary in respect of that electronic communication’, the
term intermediary it is the synonym of the term agent or mediator or
conciliator or go between. This means that the electronic communication
between the originator and addressee cannot be treated as electronic
communication if there is any party acting as intermediary.
Therefore, section 19 may provide for the aspect of agent but in section 3
on the interpretation, the aspect of agent has been declined as to form part
and parcel of the electronic communication exchanged between the
originator and addressee, hence this creates ambiguous or uncertainty on
the validity of e-agent in electronic transaction.

But some may argued that as the fact that the term agent as defined by
Cap.34555does not include or it include only natural person, then there is no
aspect known as agent in electronic means as neither software nor
computer programs can qualify the qualification of being termed as human
being despite the fact that they are created by human being to respond to
human being‟s demand or as programmed.

1.2.21 What is the Protection of Customers In Online Agreement?

In any legal agreement there must be consensus ad idem (meeting of the
minds).56 What if it is between a person and a machine? Does the concept
of free consent prevail under this situation? What happen if the

54
Section 3 of the Act on the definition of addressee; means a person or party who is intended
by the originator to receive an electronic communication, but does not include a party acting as
an intermediary in respect of that electronic communication.
55
Law of Contract Act as revised 2002
56
Section 13 of the Law of Contract Act Cap 345. R: E 2002.
49
consideration seen on the internet is not what physically presented after the
other party flourished his consideration? How does the law deal with such
confusion? What happening if on among the parties to the online contract is
a minor or mentally disabled? It is still a puzzle among the users of internet
in contracting various contracts through such a medium in Tanzanian
contract Law.
With the enactment of the Electronic Transaction Act, of 2015 most of the
questions above have been answered in guarantee the security and
protection of customers conducting business online.

1.2.22 Duties of Suppliers to Online Consumers

Due to the enormous growth in distance selling over the last years, which
has been mostly driven by the development of the online sector,
information duties of suppliers of financial services in distance marketing
have become important.57
A manufacturer is a business who manufactures goods but does not sell
them directly to you as a consumer. If the goods are manufactured outside
the United Republic of Tanzania, the importer or distributor is also
considered to be the manufacturer. A retailer is anyone in in trade who sells
goods directly to you, including retailers in shops, online retailers, second-
hand dealers, and motor vehicle dealers. It also includes manufacturers
who sell goods directly to the consumer.58
These two persons in both worlds must make sure that what they are
selling is capable of being sold for the purpose of ordinary use.

57
Bettina Heiderhoff, Grzegorz Żmij, Law of E-commerce in Poland and Germany, sellier.
european law publ., .p.54 2005
58
http://www.consumerprotection.govt.nz/for-consumers/law/consumer-guarantees-act/got-a-
problem-with-goods. It is a snapshot of the page as it appeared on 25 Mar 2016 20:17:12 GMT.
50
Section 28 of the Act provides for the duties of the supplier towards the
online buyers
28.-(1) A supplier offering goods or services for sale, hire or for exchange
electronically, shall provide the following information to consumers-
(a) Full name, legal status and place of business;
(b) Contact details including physical address, telephone and e-mail
addresses;
(c) A full description of the goods or services offered;
(d) The price of the goods or services;
(e) Information on the payment mechanism that complies with other
written laws; and
(f) Any other relevant information.
Comments
This subsection (1) provides for the necessary information needed in
exchanging electronic communication. These information are very
important so as to determine the particulars of the offeror, to know full
description of the goods or services offered particularly on the ascot of
price of the goods or services and also the nature of the payment that the
suppliers requires for the payment to be made.

(2) Before a consumer places an order, the supplier shall provide the
consumer with an opportunity to-
(a) Review the entire electronic transaction;
(b) Correct any mistake; and
(c) Withdraw from the transaction.
51
Comments
The customer needs to be given an opportunity by the suppliers to review
the entire electronic transaction so as to detect any mistake that might be
found within such transaction; correct any mistake if noted son as for the
transaction to continue to prevail or to exist; and withdraw from the
transaction if does not meet the necessary requirements given by him
particularly when the mistakes or errors found are not curable.

(3) Where a supplier contravenes this section, the consumer may, within
fourteen days of receiving the goods or services, cancel the
transaction.
Comments
If the supplier fails to give an opportunity to the customer to review the
entire electronic transaction so as to detect any mistake that might be
found within such transaction; correct any mistake if noted son as for the
transaction to continue to prevail or to exist; and withdraw from the
transaction if does not meet the necessary requirements given by him
particularly when the mistakes or errors found are not curable, the buyer or
consumer may reject transaction fourteen days from the day where the
transaction took a place.

1.2.23 Time for execution of order

Some contracts clearly specify their effective date. Others do not.
Sometimes it makes sense for contracts to take effect when they‟ve been
signed; other times, it doesn‟t.

52
In an ordinary contract transaction if a contract does not specify its effective
date, it goes into effect on the date it was signed by the person to whom
the contract was offered for a signature. If this person‟s signature is not
dated, then the contract is effective the moment the agreement left his
hands. For example, if the contract is being returned by mail, the
acceptance would be valid the moment the signed contract was dropped in
the mail. If a contract clearly specifies its effective date, then the contract is
valid from the effective date regardless of whether its signatures are
dated.59

The Act also provides for the time whereby the order is said to be
executed.
Section 29 (1) states that;
Unless the parties have agreed otherwise, the supplier shall execute the
order within thirty days from the day on which the supplier received the
order.
Comments
Here the Act entails that, despite other agreements made between parties
to a contract, the order made by the buyer/customer is deemed to be
executed within thirty days (30) from the day on which the supplier received
the order.

59
http://www.shakelaw.com/blog/when-does-a-contract-take-effect/. It is a snapshot of the page
as it appeared on 28 Mar 2016 17:35:04 GMT.
53
(2) Where a supplier fails to execute the order within time specified under
subsection (1), the consumer may cancel the agreement by giving a seven
days notice.
Comments
If such order is not executed as per time described, then the buyer or
consumer may decide to terminate the contract on that argument.
However, such cancellation of the contract is effective only when the buyer
or consumer provides a seven (7) day notice to the supplier.

(3) Where a supplier is unable to perform the contract on the grounds that
goods or services ordered are unavailable, the supplier shall within thirty
days notify the consumer and the supplier shall refund any payment that
has been made.
Comments
Sometimes the supplier may be unable to execute the contract on the
ground that the goods which acted as the subject matter of the contract are
no longer available. When this happens the supplier must provide a notice
of thirty (30) days to inform the buyer or consumer that the money paid
before will be refunded.

1.2.25 The Cancellation of the Online Sale

Most products sold by distance sales are subject to a 14-day cancellation
period, within which the consumer may cancel the purchase for no
particular reason. The cancellation period may be extended if the consumer
has not been provided with information on the terms and conditions of

54
cancellation or the fact that a purchase was subject to a charge.60 To
cancel the contract, you must inform the trader of the decision to cancel
using either the prescribed cancellation form, or some other method, before
the cooling-off period expires. During the cooling-off period, you can cancel
a distance contract without giving a reason and without incurring charges or
penalties, other than possible charges incurred in returning the goods.61
The cancellation of online sale agreement id s provided under section 30 of
the Act that; (1) of the Act provides that;
Without prejudice to any other law, a consumer may, within seven days or
longer period specified in the agreement, after receiving the goods or
conclusion of the agreement and the consumer has not received any
material benefit from the transaction, cancel the agreement for supply of
goods or provision of service.
Comments
If the consumer after the conclusion of the contract has not received any
material benefit from the transaction may cancel the agreement for supply
of goods or provision of service within seven days or longer period
specified in the agreement.

60
https://www.businesscompanion.info/en/quick-guides/distance-sales/consumer-contracts-
distance-sales. It is a snapshot of the page as it appeared on 27 Mar 2016 14:25:18 GMT.
61
http://www.citizensinformation.ie/en/consumer_affairs/consumer_protection/consumer_rights/d
istance_selling.html. It is a snapshot of the page as it appeared on 26 Mar 2016 02:44:25 GMT.
55
(2) Where a consumer has cancelled the agreement under subsection (1),
he shall pay direct cost of returning the goods.
Comments
The cost of the returning the goods to the supplier after the annulment of
the contract shall be upon the buyer or the consumer.

(3) Where a consumer has paid for the goods or services prior to
exercising a right under subsection (1) the consumer is entitled to a refund.
Comments
If the goods or service at the time of cancellation of the contract were
already been paid, the supplier has to refund the buyer for the such amount
of the money paid.

(4) The refund under subsection (3) shall be made within thirty days after
the date of cancellation of transaction.
Comments
When the contract has been terminated or cancelled, the money paid
before the cancellation of the contract, shall be paid thirty days (30) after
the cancellation of such contract
(5) This section shall not apply to electronic transactions-
(a) For financial services;
(b) By way of an auction;
(c) For the supply of foodstuffs, beverages or other goods intended for
daily consumption;
(d) For services which began with the consent by the consumer before
expiration of the seven-day period;
56
(e) Where the price for the supply of goods or services is dependent on
fluctuations in the financial markets and which cannot be controlled by the
supplier;
(f) Where the goods-
(i) Are made to the consumer's specifications;
(ii) Are clearly personalized;
(iii) By their nature, cannot be returned; or
(iv) Are likely to deteriorate or expire rapidly;
(g) Where audio or video recordings or computer software were
downloaded or unsealed by the consumer;
(h) For the sale of newspapers, periodicals, magazines and books;
(i) For the provision of gaming and lottery services;
(j) For online gambling;
(k) For the provision of accommodation, transport, catering; and
(l) Any other transactions as the Minister may, by notice published in the
Gazette prescribe.
Comments
This subsection just entails some circumstances in which online sale
agreement cannot be cancelled through using this section 30. This means
that, there are some other written laws in which those circumstances as
mentioned in subsection (5) of section 30 may use to terminate the contract
or that the contract cannot be terminated as the fact that the nature of the
goods or services provided made the contract not to be terminated.

57
(6) For the purpose of this section “direct costs” means, costs incurred and
include transport costs or postage when returning goods or services but
exclude any handling fees.
Comments
Here the section tries to describe the meaning to the term direct cost on
what has to be corporate as one among the thing to be included on direct
cost when the contract has been cancelled by the consumer and goods or
services are to be returned to the owner.

1.2.26 Particulars in an Electronic communication

The Act provides for the necessary particulars which a person who offers
the goods or service must provide online Section 31 states that;
A person who offers goods or services electronically shall provide the
addressee with-
(a) An identity of the originator and contact details;
(b) A valid and operational opt-out facility from receiving similar
communications in future; and
(c) The particulars of the source from which the originator obtained the
personal information of the addressee.
Comments
This is to ensure that the business transaction is conducted properly
without any mischief regarding to the particulars or descriptions provided
from the services or goods he/she sells. The identity of the originator is
crucial so as to make sure that a person whom the contract is made is a
natural person and not otherwise. This is simply because in digital world
nowadays, a person may chat with a stranger or animals. These particulars
will help to answer the questions stated earlier on the aspect of consensus
58
ad idem that; What if it is between a person and a machine? Does the
concept of free consent prevail under this situation? What happen if the
consideration seen on the internet is not what physically presented after the
other party flourished his consideration? How does the law deal with such
confusion? What happening if on among the parties to the online contract is
a minor or mentally disabled?

1.2.27 Unsolicited goods, services or communications

The majority of national laws have customer‟s security and commerce
legislations that compacts with circumstances where merchants endeavor
to charge a person for unwanted goods, such as phones, books, toys or
any unwanted services that you know. Some may in reality carry out a
service for you without your permission, such as cleaning your car windows
while you‟re in traffic queue. These services or goods provided, they no
legal consequences in terms of payment to a person who received them,
unless otherwise such person consented to receive such nature of services
or goods.
In relation to cyber world such unsolicited commercial communication on
goods or service can also occur.
As per section 32 of the Act provides that;
(1) A person shall not send unsolicited commercial communication on
goods or service unless-
(a) The consumer consents to the communication;
(b) At the beginning of the communication, the communication discloses
the identity of sender and its purpose; and
(c) That communication gives an opt-out option to reject further
communication.
59
Comments
Unsolicited commercial communication on goods or service is the situation
whereby the goods or services communicated through electronic means
are not wanted by the customers or consumers. However, there are some
circumstances whereby such unsolicited commercial communication on
goods or services can be legally recognized, if; the customer
himself/herself agrees with such electronic communication, if the consumer
knew the purpose and identity of the originator or the sender from the
beginning of the electronic communication. And also if such electronic
communication provides the opportunity to eliminate auxiliary
communication.

(2) The consent requirement is deemed to have been met where-

(a) The contact of the addressee and other personal information were
collected by the originator of the message in the course of a sale or
negotiations for a sale;
(b) The originator only sends promotional messages relating to its similar
products and services to the addressee;
(c) The originator offered the addressee the opportunity to opt-out and the
addressee declined to opt-out; and
(d) An opportunity to opt-out is provided by the originator to the addressee
with every subsequent message.
Comments
The permission given by the customer as described above in subsection
(1), (a) of section 32 of the Act, is sufficient when the information of the
receiver where composed by the originator of the message in the path of
60
the deal or negotiation for a deal. So the information needs to be gathered
only at the time of conducting the deal or in a mode of business transaction
and not otherwise. The originator needs only to send encouragement
messages which are relating to the similar products and services to the
receiver or the messages which are suppose to be send to the receiver
from the originator needs to be of the same products or services.
The permission is also said to be effective if the originator provides the
receiver with the option to reject the goods or services and the receiver or
addressee reject such provided option. Also if the option to reject the goods
or services is provided by the originator in successive messages, then such
action creates the effectiveness of the permission provided by the
addressee.

(3) An originator who contravenes this section commits an offence and

shall, upon conviction, be liable to a fine of not less than ten million shillings
or to imprisonment for a term not less than one year or to both
Comments
An originator who fails to abide with section 32 and its subsections will be
deemed as committing an offence and may be accountable to pay a fine of
not less than ten million shillings or to imprisonment for a term not less than
one year or to both.

1.2.29 Payment and Issuance of Receipt in Electronic

Electronic money is money which exists only in banking computer systems
and is not held in any physical form. In the U.S. many people receive their
paychecks through direct deposit, move money with electronic fund
transfers, and spend money with credit and debit cards. While physical
61
currency still has advantages in certain situations, its role has gradually
diminished. While it might seem to be a worrying thought that your
bank account balance is nothing but an entry in a computer system, it is
really nothing new. Fiat paper currency has no inherent worth either.62This
situation is currently almost the same as in Tanzania as the fact that the
development of science and technology have turn the upside down the
mode of payment.

Section 15 states that; where the law requires –

(a) Payment to be made, that requirement shall be met if payment is made
by an electronic means and complies with any conditions imposed by other
relevant laws.
(b) The issuance of any receipt of payment, that requirement shall be
met if the receipt is in the form of an electronic message and the electronic
message is accessible and intelligible so as to be usable for subsequent
reference.
Comments
If the law necessitate that a certain payment must be made, then such
payment requirement shall be sufficient if it is made electronically or
through electronic means and complies with any conditions imposed by
other relevant laws. This is the same apply in the issuance of the receipt
that, on the issuance of the receipt of any payment made, such issuance is
sufficient if it is made electronically or through electronic means. By the
term electronic means, it means that in the form of an electronic message

62
http://www.investopedia.com/terms/e/electronic-money.asp. It is a snapshot of the page as it
appeared on 29 Mar 2016 13:58:39 GMT.
62
as long as message is accessible and intelligible so as to be usable for
successive position.

1.2.30 Service By Electronic Means

When a document may be served by mail, express mail, overnight delivery,
or fax transmission, the document may be served electronically under
section 14 states that;
(1) Where the law requires a document to be served, that requirement is
met if the document is served in an electronic form.
(2) Subsection (1) shall apply where there is an information processing
system which can-
(a) Identify the origin, destination, time and date of service, sending or
delivery; and
(b) Acknowledge receipt of the document.
In his Judgement, McMurdo J said:
In Capper v Thorpe,63 it was said that a document will be served “if the
efforts of the person who is required to serve the document have resulted
in the person to be served becoming aware of the contents of the
document”.
In Howship Holdings Pty Ltd v Leslie, Young J (as he then was) held that
although service of an application for an order under s 459G was not
affected by the deposit of the document in a document exchange box, the
proof of actual receipt of the document from that box would suffice. Young
J said.64

63
HCA 24; (1998) 194 CLR 342 at 352
64
https://www.dundaslawyers.com.au/electronic-service-of-documents/. It is a snapshot of the
page as it appeared on 26 Mar 2016 10:10:41 GMT
63
These are the examples of American cases which shows how important
and authenticated are, the services provided through electronic means.
Comments
If the law necessitates the document to be provided, such requirement is
sufficient if the document in provided electronically or in electronic form. By
the term electronic form it means the provision of the (distance) service
without the simultaneous presence of the parties, by data transmission at
an individual request of the recipient, sent and received by means of
devices for electronic processing, including digital compression and storage
of data, which is entirely broadcast, received or transmitted by means of
the telecommunications network.65 Such electronic document shall be
applied if the information processing system (technical solutions, including
information and communications devices and cooperating software tools
enabling individual distant communication, using the data transmission
between ICT systems, and in particular electronic mail) is capable of
identifying the origin, destination, time and date of service, sending or
delivery, designation of the information and communications technology
system enabling communication via electronic means, also if it is capable
of acknowledging receipt of the document.

1.2.31 Online Auction and Traditional Auction

You may have been to a traditional auction where a fast-talking auctioneer
calls out bids while buyers raise their paddles to secure their price.
Traditional auctions offer many advantages, but online auctions are
becoming a more popular option. It is important to understand how

65
https://myalpaca.eu/en/terms/terms-and-conditions-providing-services/. It is a snapshot of the
page as it appeared on 16 Mar 2016 00:24:45 GMT.
64
traditional auctions and online auctions are managed, because there are
some key disadvantages and benefits for both types. An online auction
may be less expensive for sellers due to the elimination of costs associated
with holding a traditional auction, but may limit buyers. Once buyers see
items they are interested in, they can bid for purchases using their credit
card information. Online auctions are available to more potential buyers,
not just buyers located in a specific area near the auction house. Having a
wider range of bidders during an auction can be beneficial to the seller.66
In Tanzania the online auction is covered under section 27 of the Act which
states that;
Where a written law requires a contract of sale by auction, the requirement
of the fall of hammer is met in an online auction using the time at which an
electronic communication was received as the time limit as the means of
selecting the last bidder.
Comments
In a normal auction the final bid is complete upon the fall of the hammer. If
the law requires a contract of sale by auction to be completed through the
fall of the hammer, such requirement is sufficient online through using a
time when an electronic communication was made or received as the time
limit in selecting the last bid.

66
http://www.hpa4u.com/online-auctions-vs-traditional-auctions/. It is a snapshot of the page as
it appeared on 28 Mar 2016 16:34:15 GMT.
65
1.3 Conclusion
Tanzania is one of the common law countries that abide by common law
principles in its legal system. Precedent is one of the common law
principles that apply in Tanzania. The court may use previously decided
cases either as authoritative or persuasive from the court of record within
the country or from any other common law country67.Previous decisions
from courts of record in Tanzania may provide authority for recent cases.
For example some decisions show that courts of laws in Tanzania are
willingly adhering to technological advancements as against contractual
environment existing to enhance contract and trade.
The courts of law should apply the same line of arguments developed in
the above cases and activate legal reforms to e-contracts. This duty if
properly done by courts of laws will make Parliament not to rush into
changes but to have sufficient opportunity to review the existing
environment and examine the reforms required.
I stand to be corrected that these laws they do not have a clear provision
what is known as e-agent as none of them provide a clear vision of what e-
agent is and their legal consequences in online environment.

67
NYAMAKA. D. M, , “The Legal and Practical Aspects of Automated Teller Machines (ATMs) in
Tanzania” LL.B Dissertation, RUCO, at Pp 22-25. (2009)
66
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Statutes

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The Cyber Crime Act 2015
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Tanzania Communications Regulatory Authority Act 2003

76
Foreign Statutes
The Hong Kong Electronic Transactions Ordinance, Ord. No. 1 of 2000
The Indian Contract Act, (1872)
Uniform Electronic Transaction Act (UETA 1999)
Uniform Computer Information Transaction Act (UCITA 2002)

International Laws
The Brussels Regulation (EU) 1215/2012 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters (recast)
(“the Recast Regulation”) came into effect in Ireland on 10 January 2015.
The Brussels Convention on jurisdiction and the enforcement of judgments
in civil and commercial matters passed on 27 September 1968
The United Nations Commission on International Trade Law (UNCITRAL)
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1996
The United Nations Convention on the Use of Electronic Communications
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International Contracts UNITED NATIONS PUBLICATION, 2007

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Academic Papers
D, J Nangela, Paper on the Adequacy of the Tanzania Law on E-commerce
and E-contracting: Possible Solutions to be Found in International Model
and South African Legislation, Department of Commercial Law, University
of Cape Town.
D, M, Nyamaka, Electronic Contracts in Tanzania: An Appraisal of the
Legal Framework (First Edition). Mwanza: Saint Augustine University of
Tanzania, 2011.

Notes
Maryke S, Nuth, Electronic Contracting II: Notes Formation of Electronic
Contracts, NRCCL, University of Oslo, Faculty of Law, 2010.
Zakayo N, Lukumay, Notes on Electronic Contract, School of Law.
University of Dar es Salaam, 2012

79

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