Masaryk UniversityFaculty of Law

Workgroup for Law and ICT

JUDr. Radim Polčák, Ph.D.radim.polcak@law.muni.cz

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