Identity and authority . Benefits to consumers and businesses . In evaluating the merits of the consumer consent provisions that Congress wrote into the E-Sign Act, it is essential to consider the role that consumer consent plays in contract formation generally. It is also important to consider that the rules that govern the creation, interpretation and enforceability of private contracts are defined by state, and not federal, law, and that there is a large body of traditional state contract law on which the consumer consent provisions of the E-Sign Act build.
Federal law is an overlay on state law .
There is as yet no general federal law on the formation, interpretation and enforcement of private contracts. While federal law modifies state law, federal law does not displace state law, and very few people argue that it should. Lawmaking function of private contracts . When a private contract is enforceable by court action, the parties are in effect exercising lawmaking power. That is because their promises create obligations enforced by the state at the request of anyone entitled to performance.