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Masaryk UniversityFaculty of Law
Workgroup for Law and ICT
JUDr. Radim Polčák, [email protected]
www.law.muni.czICQ: 217-486-919
E-contractingAberystwyth, 28 April 2009
Overview of the lecture
major issues
typical forms of e-contracts
validity
consumer e-contracts
Major issues in e-contracting
Identity (more imprtant than security)
Jurisdiction
Distance
Adhesion
Typical forms o e-contracts
Click-wrap
Typical forms o e-contracts
Click-wrap
Typical forms o e-contracts
Click-wrap
Typical forms o e-contracts
Click-through
Billing info ConfirmationDiscounts
Browse-wrap
Validity issues
Caspi et al. v. Microsoft 323 N.J. Super. 118, 732 A.2d 528 (N.J. Super. Ct. App. Div. 1999)
Pollstar v. Giggmania, Ltd 170. F. Supp. 2d 974, 981 (E.D. Cal. 2000)
Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238(S.D.N.Y. 2000)
Specht v. Netscape Communications Corp., 150 F Supp. 2d 585, 593-94(S.D.N.Y. 2001)
Awareness – making contract, parties, termsSubsequent issues – visibility, demonstration and provability of consentJustified expectations of partiesRepresentation – robots – Register v. Verio
Validity issuesRecommendations (Grossman, Hift, Rothman)1. The contract terms should be visible to the potential purchaser at the offeror's
website. After all, in order to have a mutual meeting of the minds the parties must know what the contract terms are.
2. The purchaser should be asked to either accept or reject the terms by clicking on an icon or typing in the words.
3. If access is permitted without indication that the user agrees to be bound by the terms of the contract, then having a contract becomes futile. The point is not to allow access unless the user agrees to the offeror's terms.
4. Make sure that the contract includes a provision regarding a representation or warranty that says that the person who is entering into the contract is who they say they are; and if they are entering the contract on another's behalf, then they have the right to be binding that other person. The use of electronic signatures can prove to be increasingly effective in this area. If such a feature is required to enter into an offeror's online contract, the need to worry about this is virtually diminished.
5. Remember that the offeror's contract will ultimately be interpreted according to notions of traditional contract law. It is very important to follow the same rules that would apply to a regular paper contract. If it is not allowed offline, it will not be allowed online.
Consumer e-contracts
Distance (no prior examination)
Expertise – consumer / professional
Specific measures available for cheating(choice of law, forum, liability limitations)
Qualification – consumer distance adhesion
Consumer e-contracts
Prohibited terms - Directive no. 93/13/EEC- warranty, responsibility limits- asynallagmatic terms- one - sided changes
Implied terms - Directive no. 97/7/EC- amended by directives 2002/29/EC and 2002/65/EC- prior information- confirmation of contract- right of withdrawal- invalidity of inertia selling- time of performance, cancellation of payment
- regulation (EC) 44/2001- choice of forum only in favour of the consumer