THE ELECTRONIC CONTRACT SIGNING AND ITS COMING INTO FORCE IN THE

ROMANIAN LAW

(The 6th International Conference of PhD students, University of Miskolc, Hungary, 12-18 august
2007, Published by University of Miskolc, Inovation and Thechnology transfer centre, ISBN 978-
963-661-783-7 Ö ISBN 978-963-661-782-0)

Bogdan Cristian Trandafirescu

Lawyer, PhD Bogdan Cristian Trandafirescu,
Ovidius University of Constanţa ( Romania), Faculty of Law and Administrative Sciences

ABSTRACT
The new character of the legislation of the electronic commerce and the complexity of the
social relations it regulates determined the appearance of numerous aspects which necessitate
special analyses. In this study we are going to analyse one of these aspects : the moment of
concluding a contract in electronic form.

1. INTRODUCTORY NOTIONS

The electronic commerce appeared as a result of the development of the informational

technologies ( especially of the Internet ), which created the possibility of concluding commercial
transactions with celerity and eliminating the various intermediaries between the producer and
the final beneficiary.
Ever since the beginning of the electronic commerce the old regulations ( both civil and
commercial ) regarding the long - distance contracts proved insufficient and inadequate.
Having in view the world-wide spreading of the Internet and, as a consequence, the
possibility of signing electronic contracts by partners from different countries, the regulations of
this new reality raised the interest of U.N.O. ( making the object of the U.N.C.I.T.R.A.L.
activities 1) .
So, U.N.C.I.T.R.A.L. adopted ( at the session on 12 June 1996 ) The Model Law of electronic
commerce and the Guide for the implementation of the model law, sanctioned by the Resolution
of the U.N. General Assembly no 51/162 from 16 December 1996. The model law contains 17
articles, to which a supplementary article 5 bis was added in 1998. In the year 2001 the
U.N.C.I.T.R.A.L. Model Law on Electronic Signature was adopted.
At the level of the European Union a series of directives concerning the electronic commerce
were adopted : Direction 97/7/EC with reference to the protection of consumers in the case of
concluding electronic contracts, Direction 1999/93/EC with reference to the electronic signature
and Direction 2000/31/EC with reference to the electronic commerce.
In the context of the aliniation of the internal legislation body to the communitary acquis, the
Romanian Parliament has adopted the legislation of the electronic trade, taking over the solutions
accepted by the European Union : The Gouvernmental Ordinance no 130/2000 regarding the
protection of the consumer on signing and executing electronic contracts, which was sanctioned

1
With a view to accelerate and increase the efficiency of the process of unification of the international commerce
law, The U.N. General Assembly decided, in Resolution no 2205 from 17.12.1966, the creation of U.N. commission
for International Commercial Law ( U.N.C.I.T.R.A.L. ) as a subsidiary organ of the General Assembly.
and modified by Law no 51/2003; Law no 455/2001 regarding the electronic signature; Law no
365/2002 regarding the electronic trade.
The legislation of electronic commerce presents many difficult aspects both theoretically and
practically speaking, one of them being the moment of concluding a contract in electronic form.

2. THE CLASSICAL THEORIES REGARDING THE CONCLUSION OF THE

INTER ABSENTES CONTRACTS

The electronic contracts are a species of the inter absentes contracts, which refer not to
physical distance between the parties, but the distance in time of the offer and the acceptance.
In the case of inter absentes contracts a special problem appears, namely the moment of
cocluding a contract. In order to solve this problem specialized studies of law2 took into
discussion four systems : the emission system, the mailing system, the reception system and the
information system.
a) In the emission ( or declaration ) system it is considered that the willingly agreement of the
parties is materialized at the very moment the destinee of the offer manifests his agreement with
the received offer, even if he didn’t communicate his acceptance to the offerer.
b) In the acceptance mailing system, the contract is considered concluded at the moment in
which the acceptant mailed his affirmative answer, even if it wasn’t received by the offerer.
c) In the reception system the contract is considered as signed at the moment in which the
acceptance of the destinee reached the offerer, whether the offerer acknowledges its content. The
only objection that can be made to this system is that the contract is considered signed, although
the offerer doesn’t know that the acceptance took place.
d) In the information system, the contract is considered as signed at the moment in which the
offerer effectively learns about the acceptance. In the Romanian Law the theory of information is
sustained by art. 35 of Commercial Code. It was considered that this theory is the most precise,
that it is closest to stating the moment of concluding the contract, because it is natural that the
offerer should be informed about the content of the acceptance, because, if it includes some
objections , it actually represents a counter-offer with which the offerer must agree3. The only
incertitude that remains is that regarding the date when the offerer effectively was informed about
the acceptance.
If the solution proposed by the emission theory or by that of the declaration of acceptance
leave the contract at the discretion of the destinee of the offer, the solution proposed by the theory
of information has the inconvenient that the contract remains at the discretion of the offerer.
It is possible that the offerer, which, on reception of the acceptance may have other interests
than those he had at the moment of launching his offer, say that, though he received the mail, he
did not learn about its content, by refusing to open it. In order to eliminate these disadvantages,
the legal practice and the Romanian doctrine, enacted that, from the moment in which the offerer
receives the acceptance, a simple presumption that he knows the content of the acceptance, starts
to operate.

3. THE MOMENT OF CONCLUDING A CONTRACT IN ELECTRONIC FORM IN

THE ROMANIAN LEGISLATOR’S CONCEPTION

2
STĂTESCU, C.; BÎRSAN, C.: Drept civil. Teoria generală a obligaţiilor, Ed. ALL BECK, Bucureşti, 1999, p 50-
51; ŞTEFĂNESCU, B; RUCĂREANU, I. : Dreptul comerţului internaţional, Ed. Didactică şi Pedagogică,
Bucureşti, 1983, p. 74-75.
3
ANGHENI, S. ;VOLONCIU, M.; STOICA, C.; LOSTUN, M.G. : Drept comercial, Ed. Oscar Print, Bucureşti,
2000, p. 304.
 The regulations of this subject in the Romanian legislation is to be found, as we have shown
in Law no 365/2002.
Necessary explanations. In an erroneous way, in the usual juridical language, the “offer” is
identified with the proposal of signing a contract expressed by the debtor of the effective service
which makes the object of the contract ( the seller, for instance ), but it is correct to see the offer
as a manifestation of one’s will, aiming at concluding the contract ( manifestation which may
come from either of the parties involved ).
When the proposal ( offer ) is expressed by the debtor of the money service ( the buyer, for
instance ) it is called an “order” and its acceptance by the debtor of the characteristic carrying out
the service is called the “ acknowledgment” of the order.4 We considered it necessary to give
these terminologic explanations in the conditions in which Law 365/2006 uses the term “offer” in
both forms.
The informing obligations of the provider of services. The provider of services is obliged to
put at the disposal of the destinee two categories of information before concluding the contract :
general and specific.
General information – the provider of services has the obligation to put at the disposal of the
destinees and that of the public authorites the information necessary for his identification, the
services he offers and the price perceived for them. This obligation is considered as being
satisfied in the case in which the provider displays the information clearly, in a visible place, and
permanently on the web site which is offering the service ( art. 5).
Specific informations – the provider of services also has the obligation to put at the disposal
of the destinee, before the destinee sends his offer to conclude the contract or to accept the firm
offer to contract made by the provider of services, the following information : a) the technical
stages to be followed in order to conclude the contract; b) if, once concluded, the contract is
stocked or not by the provider and if it is accessible or not; c) the technical facilities which the
provider puts at the disposal of the destinee to identify and correct the errors appeared at the
moment of the introduction of data; d) the language in which the contract may be concluded; e)
the relevant procedural codes to which the provider agrees; f) the clauses and the general
conditions of the offered contract, presented in a manner that allows stocking and reproduction (
art. 8 ).
The moment of concluding an electronic contract must be analysed taking into consideration
two hypotheses : the expressed acceptance and the implied acceptance ( tacit acceptance ).
The expressed acceptance. In the case of the expressed acceptance, " if the parties have not
provided otherwise, the contract is considered as being concluded at the moment when the
acceptance of the offer to contract is known by the offerer" ( art. 9 (1)). The theory of information
is thus validated.
According to art. 9 (3), if the destinee sends by electronic means his offer to contract or the
acceptance of the firm offer to contract made by the provider of services, the provider of the
services has the obligation to confirm the receipt of the offer in one of the following ways : a)
sending evidence received by e-mail or by another equivalent individual means of
communication, on the adress indicated by the destinee, in 24 hours time from receipt of the offer
or acceptance; b) the confirmation of the receipt of the offer or acceptance by a facility equivalent
to the one used for mailing them, as soon as the offer or acceptance was received by the provider
of services, on condition that this confirmation allows its being stocked and reproduced by the
destinee.

4
CĂPĂŢÎNĂ, O; ŞTEFĂNESCU, B. : Tratat de drept al comerţului internaţional, vol. II, Editura Academiei
Române, Bucureşti, 1985-1987, p. 26; SITARU, D. Al. : Dreptul comerţului internaţional, vol. I, Ed. All Beck,
Bucureşti, 2004, p. 497-498.
 Having in view the aspects shown above two modalities of perfecting the contract are taking
shape.
a) After he was informed in the conditions of art. 5 and 8 and after he received ( eventually )
the commercial communication in the conditions of article 6, the destinee of the service sends his
offer to contract to the provider ( by electronic means ). In this case the destinee of the service is
the offerer ( we speak therefore, of an "order" ) and the provider of the services is the destinee of
the offer. The contract is concluded in the moment in which the acceptance emitted by the
provider of the service is received and known by the destinee of the service. This is the only
possible modality to conclude the contract if the provider put his service at the disposal of an
unknown number of persons.
b) The provider of services sends, at the same time with the information to articles 5 and 8
and with the commercial comunication (art. 6 ), his firm offer to contract. In this case the
provider is the offerer and the destinee of the service is also the destinee of the offer. The right to
emit the acceptance of the firm offer belongs to the destinee of the service. The contract is
considered concluded when the acceptance of the firm offer arrives at and is known by the offerer
( the provider of the service ).
The condition of confirmation, stipulated by art. 9 (3) is not enforced in the case of the
contracts concluded exclusively by means of electronic mail or by equivalent electronic means of
communication.
The tacit acceptance. The contract which by its nature or on request of the beneficiary,
imposes an immediate performance of the characteristic activity, is considered as concluded in
the moment when its debtor has started tocarry out the activity, except the case in which the
offerer has required that the acceptance shall be first communicated to him ( art. 9 (2)).

4. CONCLUSIONS
The character of novelty of the legislation regarding the electronic commerce and the
complexity of the regulated social relations had as an effect the appearance of many aspects
which require special developments. In this work we dealt with the problem of the moment at
which the electronic contract is concluded.
As we have shown above, two hypotheses must be taken into consideration : the expressed
acceptance and the tacit one. In the case of the expressed acceptance, Law 365 confirms the
theory of information, a distinction having to made betwen two situations : then when the firm
offer is made by the destinee of the service and the situation when the firm offer is made by the
provider of services. Regarding the tacit acceptance, the contract which by its nature or on
request of the beneficiary, requires an immediate carrying out of the characteristic service can be
considered as concluded at the moment when its debtor has started to carry out the activity,
except the case in which the offerer required a prior confirmation of the acceptance.

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