Monash University

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Contract formation in cyberspace: a comparative study of Australian, American and Iraqi laws

posted on 2017-02-15, 04:54 authored by Hadi, Iman Majeed
Electronic commerce is an increasingly vital part of national economies and the global economy. The promotion of electronic commerce requires clear and effective laws. As electronic contracts are the building blocks for electronic commerce, it is essential for national laws, especially in developing countries, to be sufficiently certain and appropriately adapted to promote electronic commerce. This thesis formulates recommendations for reforming Iraqi contract law in order to promote the adoption of online contract formation. The recommendations are developed by means of a comparative analysis of the relevant laws from two developed countries: Australia and the United States of America. Accordingly, the main research question addressed in the thesis is: Should Iraqi law dealing with online contract formation be reformed, and if so how, in the light of the established legal rules governing electronic contracts in Australia and the United States? The Australian and American legal systems have considerable experience in dealing with electronic contract formation. Although both jurisdictions are part of the common law tradition, while Iraq has a mixed Islamic and civil law tradition, the thesis demonstrates that it is possible to develop practical proposals for reforming Iraqi law from a comparative analysis of the way in which these two developed legal systems have dealt with key legal issues in electronic contract formation. The analysis undertaken in the thesis indicates that there are weaknesses in the existing legal rules governing contract formation in the Iraqi Civil Code, as well as in Iraq's recently introduced electronic transactions legislation. The weaknesses identified in the thesis, which include weaknesses in the way in which Iraqi law deals with offline contract formation as well as with online contract formation, are analysed by means of a comparative legal analysis of the Australian and American laws, and by the application of traditional doctrinal analysis. The methodologies are used to evaluate the strengths and weaknesses of the two legal systems under comparison in order to identify the best elements of the relevant laws, which are then applied to address the key legal challenges in electronic contract formation. The three key legal challenges addressed in the thesis are: the distinction between an offer and an invitation to make offers; the determination of the time and place of contract formation; and the incorporation of terms. As the thesis explains, the legal problems of electronic contract formation do not require a completely new legal paradigm, but can be solved by drawing analogies with traditional legal approaches and, where there are no clear analogies, by reforms which improve the commercial certainty of the legal rules. After examining the key challenges, the thesis sets out a comprehensive set of recommendations for reforming Iraqi law relating to contract formation, as well as elements of the new Iraqi electronic transactions legislation. It is hoped that the recommendations made for reforming Iraqi law may have broader implications, including for law reform in jurisdictions with similar legal backgrounds to Iraq, as well as in promoting the desirable harmonisation of international contract law.


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Principal supervisor

David Forbes Lindsay

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Monash Law School


Doctor of Philosophy

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Faculty of Law

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