Information and Communication Technology (like computers, mobile phones and any other electronic gadget) have transformed the traditional relationship between companies and clients, from the way products or services are offered to the public, to the way they are commercialized. This is why regulation regarding contracts subscribed through network communication platforms (like apps, social networks and web pages) has a high level of importance for companies, because it determines the way they can do their commercial activities through these platforms.
Currently in El Salvador, there is no law that regulates the general rules of contracting through network communication platforms, such as its formalities, requirements and conditions. Notwithstanding the above, companies still have the obligation to act in good faith, this is, to honor their contractual obligations acquired through a contract subscribed electronically, and to abide with any other applicable regulations regarding these kinds of contracts.
The main regulation that we are referring to is the Commerce Code, which contains certain legal provisions that allow contracts to be subscribed in distance, this means, without the need of the parties to be physically present at the same time. For these contracts to be valid and enforceable, the mentioned Code establishes that the company must send to the product or service offer, and the client must reply accepting it.
However, said regulation came into existence before Information and Communication Technology chan-ged the way business is carried out, and for that reason it does not establish specifically that it applies to contracts subscribed through network communication platforms, such as web pages, the internet, mobile apps and email. On the contrary, the referred provision of the Commerce Code establishes that it applies only to contracts subscribed through correspondence or traditional mail, which is no longer compatible with the way companies do business.
This was changed by a ruling issued by the Civil Chamber of the Supreme Court of El Salvador, in which it was established that because of the fact that commercial contracts in general dont have any legal formality, then it is possible to subscribe them, not only through traditional mail but also through digital messages, emails, and the internet, except for those contracts for which the law does establishes a specific formality for their subscription. The mentioned court ruling opens the door for companies to subscribe contracts through network communication platforms, making commercial activities more expedite and in respect to a higher number of clients.
Another applicable regulation companies have to abide is the Consumer Protection Law, whose recently approved reforms strengthen the legal framework of the electronic commerce in El Salvador. Among these reforms, a legal concept of electronic commerce is incorporated, and is defined as the process of contracting or exchanging goods, services and commercial information through communication networks.
Additionally, certain rules are incorporated regarding contracts subscribed electronically, like the obligation of the company to revert payments made by consumers, in specific cases determined in said law; the obligation to confirm the consumer the reception of their purchase order; the obligation to show the consumer a briefing of the goods or services that are being purchased; the obligation to keep stored all the documentation and information of commercial transactions with consumers, amongst others.
Definitely, from the legal regulations and court ruling described above, we conclude that the agreements and contracts subscribed through network communication platforms in fact generate obligations for the contractual parties, which are enforceable in court, if they are duly proved. Nevertheless, it is still indispensable to have a law that regulates the general rules regarding the formalization, scope, characteristics and kinds of commercial transactions conducted electronically, with the purpose of facilitating its proof and enforceability.
In this respect, some entities have filed to the Legislative Assembly of El Salvador, a proposal of an Electronic Commerce Law which, if approved, will establish the legal framework applicable to contracting through network communication platforms.