Legal and Evidential Validity to Electronic Transactions in Commerce and Formation of Contract: Tanzania Perspective

Nyangarika, Kassim Mmbaga (2013) Legal and Evidential Validity to Electronic Transactions in Commerce and Formation of Contract: Tanzania Perspective. Masters thesis, The Open University of Tanzania.

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Abstract

The internet is now an open network in e-transactions but in turn has made all stake holders in this field including courts to have a new outlook with e-contract and e-evidence. When a dispute arises on admissibility and validity of evidence in courts at this electronic age in respect of a business, be it small or big, done through internet by way of e-transactions, rules of e-transactions must be in place. The introduction of the new electronic technology has resulted into intra-jurisdiction issue(s), but has left Tanzania Laws behind. International businesses through electronic technologies affect also national laws and dispute resolution mechanism. This study will try to show how technological advancement had an impact in our existing laws especially in deciding admissibility and validity of e-contract and e-evidence in courts after changes have been made in our laws so as to incorporate e- evidence in dissolving commercial disputes. The research looks further on court approaches used in some of the cases in Tanzania which recognized and which refused electronic transactions before and after enactment of new rules or amendments of the law. In the process, the paper reveals colonial and post colonial laws together with guidance from other jurisdiction and international instruments used in dealing with digital evidence in order to go hand in hand with technology development. Chapter one is introductory remarks which briefly deals with background of the problem, scope and significance of this study, research objectives and questions, hypotheses and research methodology. Chapter one also provides a literature review from selected writers on the subject. Chapter two gives a comparison analysis of contract law in UK and Tanzania and recognition of digital evidence. Chapter three analyses the liability and types of paper based and digital contacts. The study in this chapter revisits our law of evidence and analyses concepts in traditional contracts as well as electronic contracts based on the approaches used by courts in admitting or rejecting digital evidence. The chapter also reveals legal implication of digital transactions in so far as courts are concerned and proposes approaches to the problems within the wider concept in the international conventions on trade. Chapter four gives a brief picture of commercial contract in international and national level. This chapter also gives some thoughts on the importance of UNCITRAL Model Law especially on relevancy of CISG in the field of e-commerce. Further, this chapter discusses briefly on limitation and various approaches by courts in admissibility and validity of e-evidence and e-contract in Tanzania. Furthermore, the chapter reveals and analyses inconsistencies in approaches by our courts and suggests a comprehensive taxonomy on admissibility of digital evidence as used in other jurisdictions and principles involved in international instruments. Lastly, chapter four discusses a universal accepted classification on admissibility of digital evidence based in this study. Chapter five shows the findings, recommendations and conclusion of the study as well as brief analysis of cross cases findings, issue of legislations challenges, intra- jurisdiction issues, policy matters and methodology of this research. Lastly, the chapter presents most comprehensive studies on the subject currently in vogue in other jurisdictions on digital transactions and future study to be done.

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