Elektron müqavilələrin yaratdığı hüquqi məsələlər

Introduction

The evolution of the internet made it an attractive medium for both B2B and B2C e-commerce.[1] In the past, web was used primarily as a shop window by the companies, in comparison to nowadays, where businesses take binding orders directly via website.[2] Recently, people prefer online selling and buying of goods and services to physical, since it provides rapidity and convenience. Therefore, possibly online contract formation will surpass offline in the nearest future. Arguably, people will enter into electronic contracts as freely as they do in a bookshop and cafe, with the same little thought.[3] Thus, it is crucial to consider new legal issues raised by e-contracts and find whether the relevant legal framework is appropriate to meet new challenges posed by them or not.

But before switching to the discussion, it is pertinent to give the definition of e-contracts. E-contracting is ‘the automated process of entering into contracts via the parties’ computers, whether networked or through electronic messaging.’[4] E-contracts are treated the same as offline contracts[5] according to the Article 9 of the E-Commerce Directive 2000.[6] However, despite the established legal framework for online contracts, new legal issues raised by them still cause certain challenges and vagueness to the specifics of contract formation. Even if the established legislation tries to deal with the issues online contracts raise, are they effectively addressed in practice? Do the rules of offline contracts really apply to online scenarios?

There are two approaches to this problem. On one hand, Eliza Mik argues that technological aspects of modern communications are in fact relevant to the manner contracts are formed, because ‘from a contract law perspective internet does not exist.’[7] Moreover, most people follow an old proverb ‘If it’s not broken, don’t fix it’ in regards to Internet regulation.[8] Therefore, this approach aims to extend existing traditional rules of contracting by analogy to cyberspace[9] and is called “functional equivalent” approach.[10] On the other hand, Andrew Murray argues that because of new technological issues ‘analysis of contract is muddied.’[11] Therefore, legal and economic institutions need to get adjusted to modern technologies of trade in the same way as they did in response to major technological and organizational innovations of the 18^th and 19^th centuries.[12]

Apparently, Electronic Signatures Directive[13] and Distance Selling Directive[14] as well as Directive[15] follow the functional equivalent approach, by applying traditional rules to online world.[16] However, this essay will argue that e-contracts still raise certain new legal issues which pose challenges and are not adequately met by the relevant legal framework;[17] therefore, there is a need to slightly change it in order to avoid ambiguities in the future. Issues such as offer and acceptance in the online world will be analysed, as they are one of the crucial elements in contract formation and can fundamentally change the character of a contract.[18] Then the author will find if there are any reasons for not adequately meeting the new legal issues raised by e-contracts and conclude that even if the legislation was amended in order to adapt to the needs of e-contracting, there would always be a risk of it becoming obsolete even before completion, since law always develops.

Offer or an invitation to treat?

Before switching to analyse the above issues, it is crucial to say that under English contract law a valid contract requires an offer, an acceptance, consideration, and an intention to create legal relations.[19] The issue of contract formation was examined by the European Union in the Directive[20] for the purposes of stimulation of e-commerce and its harmonization.[21] As a result, after several reviews, Directive[22] was finally enacted on 8^th June 2000.[23] However, Directive addresses only minor issues regarding contract formation.[24] While providing the duties for those who market their products over the internet, Article 11 of the Directive[25] does not clearly stipulate as whether a website offering goods or services is legally making an “offer” or “an invitation to treat”.[26]

A distinction between an offer[27] and an invitation to treat[28] is that the latter is not binding.[29]Although, Article 11[30] assumes that the term “order” equates with the legal concept of “offer” and Electronic Commerce (EC Directive) Regulations 2002[31] in regulation 12[32] confirms such an assumption in relation to the “order”[33], it is still not clear enough. Matter becomes more complicated when it comes to online contracts, because rules regarding “offer” and “invitation to treat” that apply to offline contracts are not suitable to online scenarios, due to the absence of automated confirmation of an order. Failure of a Directive in clarifying such rules, may in turn, cause uncertainty in determining whether an online contract was binding or not. For instance, if a website constitutes an offer and once there is an order by the customer, supplier is unlikely to reject it; therefore, contract deems to be binding between parties.[34] However, if the website is just an invitation to treat, the customer’s order equals to an offer, hence, he or she can withdraw from it, until the provider accepts it.[35]

Clarifying issues such as “offer” and “an invitation to treat” in Directive will help parties to avoid problems such as pricing errors which may lead to costly litigation processes. Accordingly, these problems may result in a lack of trust by the e-customers in e-commerce, as they can become suspicious of fraud.[36] And as a result, e-commerce will not achieve its full potential, if consumers feel that online transactions are not safe.[37] Therefore, it is crucial to boost the confidence in electronic contracting.[38] Problem also occurs when customer orders a large quantity of goods that the seller will not be capable of supplying.[39] And if the website constitutes an offer, then once customer buys the product which is out of stock, provider is bound by this order.[40] In face-to-face contracts neither pricing errors nor problems with wrong quantities may occur, since no automated confirmation of an order exists, and the seller can check an item before actually handling it to the customer.

In order to avoid unreliable information concerning quantity and prices of goods, it is suggested that a website which places an order will make an invitation to treat. As argued, since the information about the products on the website is available to the public, and not to one or more specific persons, it is likely that an order will be an invitation to treat.[41] Invitation to treat is a “shield” which protects both sellers and the customers from online errors discussed above. For instance, customers are protected because they can withdraw their offer, before an acceptance takes place.[42] Sellers are protected from any mispricing and can check the amount of goods in the stock, before accepting and becoming bound by the contract terms.

Case such as Chwee Kin Keong v Digilandmall.com Pte Ltd[43] is pure evidence of mispricing of goods in the online world. However, in both cases courts held that the online buyers ought reasonably to have known that a clear mistake was made.[44] Despite the absence of an established precedent stating that an “order” should constitute an “invitation to treat”, it is clear that courts in fact assumed it was “an invitation to treat” and gave more discretion to the sellers in the above cases by protecting their rights. Taking into consideration these facts, it could have been relevant to define an “order” on the website as “an invitation to treat”. For instance, it could be appropriate to follow the wording of a provision 12 of the Regulations[45] but make little changes to it.[46] Such definition would have helped to settle similar disputes discussed above without entering the costly litigation processes. Alternatively, the cautiously designed website can arrange its own terms which will state that a customer’s order is merely an offer, and not the acceptance, followed by the example of an Amazon.co.uk.

Acceptance in the online world

1.1 What is meant by an acknowledgement of an order?

Another important issue is to determine whether an online contract has been concluded and what an acceptance in the online world means. English contract law states that an acceptance is what turns a specific order, made with the intention to be bound, into an agreement.[47] The Article 11 of the Directive[48] is silent on determining the acceptance; however it obliges the offerees to “acknowledge” the receipt of an “order” “without undue delay and by electronic means”.[49] The key problem with this explanation is that it is unknown whether an acknowledgment here constitutes an acceptance or not. Christina Ramberg fairly states that terms such as “acknowledgement” and “order” are relatively new, because neither “acknowledgement” nor “order” are concepts used in legislation on formation of offline contracts.[50]

It is argued that an acknowledgement of an offer does not mean that supplier wants to accept it.[51] For instance, when Argos accidentally advertised Sony television sets on its website at 3£ instead of 299£,[52] the fact that an offer was acknowledged did not mean it was immediately accepted. Moreover, article 11(1) does not clarify the consequences, if service provider fails to acknowledge the receipt of an order.[53] Ramberg suggests that if a party fails to receive an acknowledgement, it may claim for damages.[54] Neither does article 11(1) define the terms such as “undue delay” and by “electronic means”. What does “undue” mean? Or what does “delay” mean and how to know if there was any? Is delay measured in seconds or minutes? Thus, it can be argued that EU framework does not adequately address rules of e-contract formation.

1.2 Postal rule versus receipt rule in online contracting.

Moreover, nowadays e-contracting raises new legal issues such as acceptance of orders by e-mails and by websites. However, moment at which an e-mail acceptance or an online acceptance takes effect is unclear[55] and famously avoided in the final version of the Directive.[56] This leads to certain problems; as Kirsten Houghton and Kate Vaughan-Neil point out, ‘e-mail contracting involves parties from different jurisdictions and consequently may lead to ambiguity as when and where the contracts have been made.’[57] At the English legislation level, Regulations[58] also fails to provide any article indicating when a message is considered as having either been sent or received.[59] In paper-world usages it is easy to define at what moment the message was dispatched or received in contrast to electronic communication, where such usages are yet not at hand.[60]

According to English contract law, the traditional standard rule is the receipt rule.[61] It is easy in face-to-face contracts, where offeror hears the acceptance. When there is a distance in contract formation, the postal rule applies[62], which was introduced in the nineteenth century, when contracts were negotiated at a distance through the mails, and courts had to protect the offeree from any losses that could occur due to delay or failure on the part of the post office.[63] Therefore, postal rule is more “offeree-friendly”. Arguably, a website contracting, in particular click-wrap agreements, shall be governed by receipt rule, as a website is as instantaneous as face-to-face or oral interactions.[64]

However, there are arguments which favor postal rule rather than the receipt rule. For example, in Brinkibon Ltd v Stahag Stahl und Stahlwarenhandel mbH[65] Lord Brandon states that it is the postal rule which needs to apply to electronic acceptances as an exception to the general rule, since there can be ‘a substantial interval between the time when the acceptance is sent and the time when it is received.’[66] In Adams v Lindsell[67] it was decided that the ‘conduct of a business will in general be better served by giving the offeree certainty.’[68]  In Household Fire and Carriage Accident Insurance Co v Grant[69] Thesiger LJ states that if receipt rule applies ‘the door would be opened to the perpetration of much fraud, and putting aside this consideration, considerable delay in commercial transactions and acceptor will never be entirely safe until the receipt of a notice that his letter of acceptance had reached the destination.’[70]

Postal rule is also suggested for contracts concluded via e-mail (which is considered as a replacement for post) when contract becomes binding at the moment the message of an acceptance is sent, regardless of its receipt by the offeror.[71] But does postal rule really work in the online world? Courts nowadays are reluctant to apply postal rule to e-mail acceptances. Moreover, there is a risk that an e-mail may be attacked by a malware virus, which sends spam e-mails and therefore can automatically make binding contracts. In Entores Ltd v Miles Far Eastern Corp,[72]  Lord Denning preferred standard receipt rule by stating that ‘unlike in the case of post, the instantaneity of the media helps to alert the sender to any malfunction in the media.’[73] However, Lord Wilberforce argued that there was no universal rule for all cases and each case needed to be resolved by ‘reference to the intentions of the parties, by sound business practices and sometimes by a judgment where the risk should lie.’[74]

It has been debated that regardless of delays occurring rarely, e-mail communications are very quick and are delivered in less than a day; therefore they are instantaneous as well.[75] But how fast is instantaneous and what are the two points between which speed is measured? [76] Arguments binding instantaneous to communication methods or devices ignore that a single interaction may combine multiple devices and methods.[77] Proponents of receipt rule argue that contractual certainty can be established by proof of receipt, since current technology makes it possible not only to determine exactly when the acceptance e-mail was sent, but also when it was received by the offeror’s server.[78] However, these arguments do not take into account that once sent, a letter may go to junk, instead of inbox, and the offeror will not be aware of an acceptance for a while.

Though, if a receipt rule is approved for an e-mail contracting, then another issue must be clarified: ‘Is there a contract when the acceptance is received or when it is actually read by the offeror?’[79] It would be better, for the purpose of certainty, to introduce function which is widely used nowadays by Facebook and WhatsApp messengers, which confirms that “the message has been read”. The moment message has been read can constitute the time of an acceptance. In addition, according to Article 11(1) of the Directive “the order and the acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them”.[80] One drawback of this article is that the postal rule cannot normally apply to an acknowledgement which is also an acceptance of the customer’s offer, [81] which again proves the fact that in online world postal rule does not work.

Therefore, it appears to be that receipt rule is relevant to both website and e-mail contracting. Furthermore, in comparison to UETA[82] and UNCITRAL Model Law on Electronic Commerce[83] which include all electronic records, Directive[84]only covers orders and acknowledgements of receipt and provides no effects in private law since it only refers to what shall be deemed to have happened.[85]

1.3 Accessibility

Two more questions may arise in regards to Art 11(1)[86]: what is meant by actual access and when acceptance can be accessed? All these minor uncertainties may lead to major problems in defining time, place of an acceptance, therefore transfer of a risk. It is hard to define when there is ability to access an electronic message.[87] To avoid all the above ambiguities, it would be relevant to follow the UETA approach.[88] However, UETA is not perfect, as it fails to determine what “capable of being retrieved” means.[89] Wang suggests that the “retrievability” should not constitute the “accessibility” if an electronic communication is sent to an information system other than the designated system.[90] Therefore, it could be better to amend Article 11 of Directive in regard to “accessibility”, by following the rules of UETA and by clarifying what “capability of being retrieved” means.

The other side of the coin

If considered from a different perspective, there is an argument that although traditional contract law rules and the relevant framework for e-contracts are not enough to meet the challenges raised by e-contracts, it does not mean such legal framework is wrong. Probably, there is a reason why it fails to be adequate in meeting new challenges. Academics try to solve challenges raised by online contracts by adopting traditional contract rules to online scenarios. However, they forget that such approach deprives us from getting adapted to new modes of governance in the online contracting environment.[91] Joseph Savirimuthu argues that EU framework for online contracts is, in fact, relevant and tries to departure from the traditional contract law rules to a new interpretation of how e-contracts shall be governed.[92]

Moreover, EU regulation for e-contracts is relevant since it provides flexibility and leaves space for a website or Member States for further development of their own rules. This approach allows the software engineers, for instance in Amazon, to design a website which reflects the interplay of modalities of law, code, norms and market.[93] Such reform opens new possibilities for an effective regulation.[94] Yet, this argument fails to clarify what an effective regulation means and how it can be achieved if not by an adequately established legislation for e-contracts. As argued, the aim of established rules is primarily to help contracting parties coordinate their agreement, by ensuring that they both attach the same meaning to their objective manifestations.[95] Therefore, these rules shall be adequate.

 

Conclusion

Based on the discussions above, it is apparent that English contract law and the discussed legal framework do not adequately address new legal issues raised by e-contracts. Most of the rules regarding offline contracts do not apply to online scenarios and cause challenges. All the studies reviewed so far, however, suffer from the fact that even if there are certain new legal issues in an online world that are causing difficulties, the relevant rules for online contracts will not be able to address all of them, due to the continuous evolution of Internet. However, discussed legislation for e-contracts still needs to be slightly reconsidered in order to overcome currently existing uncertainties.

Bibliography

Primary sources:

Table of cases

• Adams v Lindsell (1818) 1 B & Ald 681, 106 ER 250
• Brinkibon Ltd v Stahag Stahl und Stahlwarenhandel GmbH [1983] 2 AC 34, [1982] 1 All ER 293
• Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] SGHC 71, [2005] 2 LRC 28
• Entores Ltd v Miles Far East Corpn [1955] 2 QB 327, [1955] 2 All ER 493
• Express Airways v Port Augusta Air Services [1980] Qd R 543
• Household Fire and Carriage Accident Insurance Co v Grant (1879) 4 Ex D 216, 44 JP 152
• Leach Nominees Pty Ltd v Walter Wright Pty Ltd [1986] WAR 244

Table of legislations, statutes, etc

• Electronic Commerce Directive 2000/31/EC
• Electronic Commerce (EC Directive) Regulations 2002
• Electronic Signatures Directive 1999
• The Distance Selling Directive 1997
• UNCITRAL Model Law on Electronic Commerce 1996
• Uniform Electronic Transactions Act 1999 (UETA)

Secondary sources:

Books

• Brownsword R., Contract Law themes for the twenty-first century (2^nd edition, OUP, 2006)
• Davies L., ‘Contract Formation on the Internet: Shattering a Few Myths’ in Edwards and Waelde (eds) Law and the Internet (1^st edition, OUP, 1997)
• Murray A., ‘Entering into Contracts Electronically: The Real WWW’ in Edwards and Waelde (eds) Law and the Internet: A framework for Electronic Commerce (2^nd edition, OUP, 2000)
• Poole J., Textbook on Contract Law (11th edition, OUP, 2012)
• Reed C., Computer Law (7^th edition, OUP, 2011)
• Rowland D., Kohl U. and Charlesworth A., Information Technology Law (4th edition, Routledge, 2012)
• Wang F. Fangfei, Law of electronic commercial transactions (Routledge 2010)

Journal articles

• Marwan Al Ibrahim, Dr.Ala’eldin Ababneh, Dr. Hisham Tahat, ‘The Postal Acceptance Rule in the Digital Age’ (2007) 2(1), JICLT, 47
• Johnson R. D. and G.D., Post, Law and Borders, ‘The Rise of Law in Cyberspace’ (1996) 48, L. Rev. 1367
• Katz A. W., ‘The Strategic Structure of Offer and Acceptance: Game Theory and the Law of Contract Formation’, (1990) 89, L. REV. 215
• Mik E., ‘The Unimportance of being “electronic” or – popular misconceptions about “Internet contracting”’ (2011) 19(4), Int J Law Info Tech, 324
• Muenchinger N., ‘Proposed US Legal Solutions To Questions Concerning Electronic Commerce’ (2000) 16, Computer L.& Secur.Rep., 378
• Newton J., ‘Online contracts: web hosts beware’ (1999) 1 (5) ,EBL, 5
• Pacini C., Andrews C., Hillison W., ‘To agree or not to agree: Legal issues in online contracting.’ (2002), Business Horizons, 43
• Ramberg C.H., ‘The E-commerce Directive and formation of contract in a comparative perspective’ (2001) 26(5), L.Rev., 429
• Savirimuthu J., ‘Code, Hybrid Models of Consent and the Electronic Commerce (EC Directive) Regulations 2002’ (2004) 2, JILT, 1
• Sookman B., ‘Legal framework for E-commerce transactions’ (2001) 7 (4), T.L.R, 85
• Tahat H., ‘Factors affecting E- commerce contract law’ (2009) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1498239, accessed 27^th May 2015)
• Wang F.F., ‘E-confidence: Offer and acceptance in online contracting’ (2008) 22, International Review of Law Computers & Technology, 271
• Walden I., ‘Regulating electronic commerce: Europe in the global E-conomy’ (2001) 26(6), .L.Rev., 529

Websites

• http://www.iccwbo.org/Advocacy-Codes-and-Rules/Document-centre/2001/GUIDEC-General-Usage-for-International-Digitally-Ensured-Commerce-(Version-II)-01/10/2001/
• http://www.scl.org/site.aspx?i=ed399

 

[1] Chris Reed, Computer Law (7^th edition, OUP, 2011)  p 268

[2] Jeremy Newton, ‘Online contracts: web hosts beware’ (1999) 1 (5),EBL, 5

[3] Andrew Murray, ‘Entering into Contracts Electronically: The Real WWW’ in L Edwards and C Waelde (eds), Law and the Internet: A framework for Electronic Commerce, (2^nd edition, OUP, 2000)  p 19

[4] General usage for international digitally ensured commerce (guidec) version II,  International Chamber of Commerce (ICC) , available at www.iccwbo.org (accessed May 21^st 2015)

[5] See Reed, Op.cit. 1, p 269

[6] Directive 2000/31/EC of the European parliament and Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (hereinafter referred as Directive). Article 9 states that “Member States shall ensure that their legal system allows contracts to be concluded by electronic means. Member States shall in particular ensure that the legal requirements applicable to the contractual process neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effectiveness and validity on account of their having been made by electronic means”.

[7] Eliza Mik, ‘The Unimportance of being “electronic” or – popular misconceptions about “Internet contracting”’ (2011) 19(4), Int J Law Info Tech, 324, 325

[8] Nancy Muenchinger, ‘Proposed US Legal Solutions To Questions Concerning Electronic Commerce’ (2000) 16, Computer L.& Secur.Rep., 378

[9] Barry Sookman, ‘Legal framework for E-commerce transactions’ (2001) 7 (4), C.T.L.R, 85, 91

[10] Dr.Hisham Tahat, ‘Factors affecting E- commerce contract law’ (2009) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1498239, accessed 27^th May 2015)

[11] See Murray, Op.cit. 3, p 21

[12] David R. Johnson and David G. Post, Law and Borders , ‘The Rise of Law in Cyberspace’ (1996) 48,

Stan. L. Rev. 1367

[13]Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures, [2000] OJ L013/12, available online at EUR-LEX site http://europa.eu.int/eurlex/en/lif/dat/1999/en_399L0093.html, accessed 21^st May 2015

[14] Council Directive on the protection of consumers in respect of distance contracts 1997/7/EC, [1997] OJ L144/19, available online at EUR-LEX site http://europa.eu.int/eurlex/en/lif/dat/1997/en_397L0007.html, accessed 21^st May 2015

[15] Electronic Commerce Directive 2000/31/EC

[16] See Tahat, Op.cit. 10

[17] This essay will mostly focus on EC Directive 2000

[18] Regardless of variety of new legal issues (such as electronic signatures, questions of jurisdiction, consideration, intention to contract, notice of contractual terms, online auctions, revocation, incorporation of terms, authentication, non-repudiation and etc.) e-contracts raise, it would be impossible to address them in this essay due to the space constraint.

[19] Diane Rowland, Uta Kohl and Andrew Charlesworth, Information Technology Law (4^th edition, Routledge, 2012) p 236

[20] Electronic Commerce Directive 2000/31/EC

[21] See Murray, Op.cit. 3, p 26

[22] Electronic Commerce Directive 2000/31/EC

[23] See Murray, Op. cit. 3, p 28

[24] Ibid

[25] Electronic Commerce Directive 2000/31/EC, art. 11

[26] See Rowland, Kohl and Charlesworth, Op.cit. 19, p 237

[27] Offer is a clear and definite in its terms expression of willingness to contract and does not leave anything for further negotiations. Once offer is accepted, a binding agreement is in force. (For further information, see Jill Poole, Textbook on Contract Law, (11^th edition, OUP, 2012) p.33)

[28] An invitation to treat is an expression of willingness to negotiate, therefore is subject to further negotiations, and does not form a binding contract upon acceptance, in comparison to an offer. (for further information about offer and invitation to treat see Jill Poole, Textbook on Contract law, (11^th edition, OUP, 2012) pages 33-36)

[29] Faye Fangfei Wang, Law of electronic commercial transactions (Routledge 2010) p 43

[30] Electronic Commerce Directive 2000/31/EC  Art.11(1) states that “the service provider has to acknowledge the receipt of the recipient’s order without undue delay and by electronic means” and “the order and the acknowledgment of receipt are deemed to be received when the parties to whom they are addressed ae able to access them”

[31] The Electronic Commerce (EC Directive) Regulations 2002 , reg. 12

[32] Ibid. Regulation 12 states that: “Except in relation to regulation 9(1)(c) and regulation 11(1) (b) where “order” shall be the contractual offer, “order” may be but need not be the contractual offer for the purposes of regulations 9 and 11.

[33] See Rowland, Kohl and Charlesworth, Op.cit. 19, p 237

[34] Ibid

[35] Ibid

[36] Faye Fangfei Wang, ‘E-confidence: Offer and acceptance in online contracting’ (2008) 22, International Review of Law Computers & Technology, 271

[37] Ian Walden, ‘Regulating electronic commerce: Europe in the global E-conomy’ (2001) 26(6), .E.L.Rev., 529

[38] See Wang, Op.cit. 36, p 271

[39] See Wang, Op.cit. 29, p 43

[40] Jill Poole, Textbook on Contract Law (11th edition, OUP, 2012) p 40

[41] See Wang, Op.cit. 29, p 43

[42] For instance in Amazon.co.uk, conditions of sale state that “Your order is an offer to Amazon to buy the product(s) in your order. When you place an order to purchase a product from Amazon, we will send you an e-mail confirming receipt of your order and containing the details of your order (the “Order Confirmation E-mail”)”. Therefore, customers can withdraw their offer at any time before acceptance takes place if they change their mind to purchase different product or to reject it.

[43] Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] SGHC 71, [2005] 2 LRC 28

[44] See Poole, Op. cit. 40, p 41

[45] Provision 12 of the Regulations 2002 state that “Except in relation to regulation 9(1)(c) and regulation 11(1)(b) where “order” shall be the contractual offer, “order” may be but need not be the contractual offer for the purposes of regulations 9 and 11”.

[46] Note: suggested change is: “In relation to regulation 9(1) (c) and regulation 11(1) (b) “order” shall be assumed as an invitation to treat, unless otherwise is provided by the terms and conditions of a website”.

[47] See Poole, Op.cit. 40, p 47 Note: the matching acceptance must be communicated to the offeror in order to be effective.

[48] Electronic Commerce Directive 2000/31/EC

[49] See Wang, Op.cit. 36, p 274

[50] Christina Hultmark Ramberg, ‘The E-commerce Directive and formation of contract in a comparative

Perspective’ (2001) 26(5), E.L.Rev., 429, 441

[51] See Rowland, Kohl and Charlesworth, Op.cit. 19, p 237

[52] See Poole, Op.cit. 40, p P 40

[53] See Ramberg, Op.cit. 50, p 442

[54] Ibid

[55] L.Davies, ‘Contract Formation on the Internet: Shattering a Few Myths’ in Edwards and Waelde (eds) Law and the Internet: A framework for Electronic Commerce (1^st edition, OUP, 1997) p 97 and Murray ‘Entering into Contracts Electronically: The Real WWW’ in Edwards and Waelde (eds) Law and the Internet A framework for Electronic Commerce (2^nd edition, OUP, 2000) p 17

[56] Roger Brownsword, Contract Law themes for the twenty-first century (2^nd edition, OUP, 2006) p 173

[57] http://www.scl.org/site.aspx?i=ed399 (accessed at 26^th May 2015)

[58] The Electronic Commerce (EC Directive) Regulations 2002

[59] Dr. Marwan Al Ibrahim, Dr.Ala’eldin Ababneh, Dr. Hisham Tahat, ‘The Postal Acceptance Rule in the Digital Age’ (2007) 2(1), JICLT, 47, 50

[60] See Ramberg, Op.cit. 50, p 443

[61] When receipt rule applies, the acceptance is made when it is instantaneously communicated to the offeror. (see Diane Rowland, Uta Kohl and Andrew Charlesworth, Information Technology Law (4th edition, Routledge, 2012) P 242)

[62]See Rowland, Kohl and CHarlesworth, Op.cit. 19,   P 242

[63] Carl Pacini, Christine Andrews, William Hillison, ‘To agree or not to agree: Legal issues in online contracting.’ (2002), Business Horizons, 43, 46

[64] Op.cit. 29, p 48

[65] Brinkibon Ltd v Stahag Stahl und Stahlwarenhandel GmbH [1983] 2 AC 34, [1982] 1 All ER 293

[66] Brinkibon Ltd v Stahag Stahl und Stahlwarenhandel GmbH [1983] 2 AC 34, [1982] 1 All ER 293

[67] Adams v Lindsell (1818) 1 B & Ald 681, 106 ER 250

[68] Adams v Lindsell (1818) 1 B & Ald 681, 106 ER 250

[69] Household Fire and Carriage Accident Insurance Co v Grant (1879) 4 Ex D 216, 44 JP 152

[70] Household Fire and Carriage Accident Insurance Co v Grant (1879) 4 Ex D 216, 44 JP 152

[71] See Wang, Op.cit.29, p 65

[72]  Entores Ltd v Miles Far East Corpn [1955] 2 QB 327, [1955] 2 All ER 493

[73]  Entores Ltd v Miles Far East Corpn [1955] 2 QB 327, [1955] 2 All ER 493

[74]  Entores Ltd v Miles Far East Corpn [1955] 2 QB 327, [1955] 2 All ER 493

[75] See Wang, Op.cit.36, p, 276

[76] See Mik, Op.cit. 7, p 331

[77] Express Airways v Port Augusta Air Services [1980] Qd R 543; Leach Nominees Pty Ltd v Walter Wright Pty Ltd [1986] WAR 244 at 431

[78] See Wang, Op.cit.36, p 276

[79] Ibid, p 277

[80] Electronic Commerce Directive 2000/31/EC  Article 11(1)

[81] See Reed, Op.cit. 1, p 274

[82] Uniform Electronic Transactions Act (UETA) 1999, National Conference of Commissioners on Uniform State Laws

[83] UNCITRAL Model Law on Electronic Commerce 1996

[84] Electronic Commerce Directive 2000/31/EC

[85] See Ramberg, Op.cit. 50, p 445

[86] Electronic Commerce Directive 2000/31/EC Article 11(1) “The order and the acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them”.

[87] See Ramberg, Op.cit.50, p 444

[88] According to UETA sec (a)-(g) (omitting (c)-(g)), “an electronic record is received when it enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record and it is in a form capable of being processed by that system”

[89] See Wang, Op.cit. 29, p 40

[90] Ibid

[91] Joseph Savirimuthu, ‘Code, Hybrid Models of Consent and the Electronic Commerce (EC Directive) Regulations 2002’ (2004) 2, JILT, 1, 24, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=630161 (accessed at 2^nd June 2015)

[92] Ibid, p 18

[93] Ibid, p 22

[94] Ibid, p 16

[95] Avery Wiener Katz, ‘The Strategic Structure of Offer and Acceptance: Game Theory and the Law of Contract Formation’, (1990) 89 ,MICH. L. REV. 215, 228

 

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