A new legal framework for electronic contracts: The EU electronic commerce proposal

Computer Law and Security Report

Volumn 15, Issue 3, 1999, Pages 147-158

  Julià Barceló, Rosa ^a,b  

^a UNIVERSITY OF NAMUR   (Belgium)

^b UNIVERSITAT DE LES ILLES BALEARS   (Spain)

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EID: 84979824680     PISSN: 02673649     EISSN: None     Source Type: Journal    
DOI: 10.1016/s0267-3649(99)80032-6     Document Type: Article

References (28)

1. EDI contracts have the following characteristics, which are incidental to EDI technology: first, the elements of the computerized messages exchanged between contracting parties are structured following international standards; second, the contractual messages are generated by the parties' computer systems, thus permitting direct computer-to-computer contracting, without human intervention. In other words, EDI contracts are entered into automatically pursuant to the exchange of messages between the contracting parties' computers.
2. Some experts in the field of contract law have warned of the danger of rapid legislation, recommending that if new legislation were to be enacted on electronic contracts, it should be done on a need to have basis. See,Bryde Andersen,M.,Electronic Commerce:A Challenge to Private Law?, Centro di studi e ricerche di dirritto comparato e straniero, Saggi, Conferenze e Seminari, N 32, Roma, 1998.
3. In fact, by using digital signature technology, the recipient of an electronic communication can achieve confidence that the sender of the communication is actually the one he purports to be and in addition communicating parties can also ensure that the communication received is actually the one that was sent. Julia-Barcelo, R. and Vinje, T.,Towards a European Framework for Digital Signatures and Encryption [1998] 14 CLSR pp.79-86.
4. American readers, in particular, should recall the fundamental difference between a Continental 'notary' and an American 'notary public'.
5. See Article 7 of the Real Decreto Legislativo 1564/1989, de 22 de diciembre,(which enacts the) Texto Refundido de la Ley de Sociedades Anonimas.
6. For example, the Spanish newly enacted Ley 7/1998, de Condiciones Generales de la Contractacion, which regulates general terms, applies both to consumers and businesses.
7. Diez Picazo, L., ¿Una nueva doctrina general del contrato?, Anuario de Derecho Civil, T. XLVI, Faxe. IV 1993, P 1705-1717.
8. For example, in Spain, the newly enacted Spanish law on general conditions which applies to business-to-business contracts establishes that the terms of the contract should be unmistakable, clear, specific, and plain. In addition, it seems to allow business-to-business contracts to contain a reference to general conditions if these are available elsewhere. Ley 7/1998, de 13 de abril, de Condiciones Generales de la Contratacion. In Belgium, according to the general principles derived from case law, two conditions must be met to enforce contractual terms: first, contracting parties must be afforded the necessary means to learn about the contractual terms and, second, the acceptant must have accepted the terms.
9. For example, Belgian case law has found that the contractual terms contained on the back of a paper sheet will only be enforceable if in the first page a notice is provided informing that the general conditions were included on the reverse. See Court of First Instance, Brussels, 8 February 1998 and Gent, 22 May 1996.
10. For example, according to Spanish rules and case law governing mistakes, the following requirements should be evaluated in order to establish whether the contract made by mistake is void: (1) there is a mistake of one party at the time of the contract, made as to a basic assumption on which the contract is made; (2) the sender is not at fault in initiating the erroneous message.
11. For example, to avoid situations of being responsible for the consequences of unilateral mistakes where the requirements to render the contract void are not met.
12. Although not intended specifically to govern cases of mistakes, the Distance Contracts Directive confers on consumers a right of withdrawal. Consumers may rescind the contract without penalty and without giving any reason, although the consumer may have to pay the cost of returning the goods.
13. For a comment on the proposed Article 2 B of the UCC, see: Williams, K, Selling and Licensing on the Internet, An Overview of Recent U.S. Developments, European Intellectual Law Review, No. 13, 1997, P 42-49; Lemley, M., Beyond Pre-emption:The Law and Policy of Intellectual Property Licensing, California Law Review, Volume 87,-No 1, 1999, 114-172.
14. For a comment on the proposed Article 2 B of the UCC, see: Williams, K, Selling and Licensing on the Internet, An Overview of Recent U.S. Developments, European Intellectual Law Review, No. 13, 1997, P 42-49; Lemley, M., Beyond Pre-emption:The Law and Policy of Intellectual Property Licensing, California Law Review, Volume 87,-No 1, 1999, 114-172.
15. For a comment on this issue, see: Griffiths, D., Contracting on the Internet, European Intellectual Law Review, N 13, 1997, P. 4-7.
16. In connection with the possibility of errors, the service provider that has selected the company that provides the electronic agency services can seek damages from that company for negligent conduct. Thus, it is advisable for both companies, namely the one that provides 'electronic agent services' and the one that employs such services, to agree on who bears the risks of such events and the limits of liability.
17. In the past, the law accorded further legal consequences to the time and place where the contract was concluded. For example, according to Spanish law, the place where the contract comes into existence determined the applicable law, i.e., the law that governs the contract, and it also established which court is competent to hear disputes relating the contract. However, these legal effects are progressively disappearing in modern law.
18. a ed., 1993, P. 261 for the application of the above principles to online contracting.
19. a ed., 1993, P. 261 for the application of the above principles to online contracting.
20. a ed., 1993, P. 261 for the application of the above principles to online contracting.
21. Although it should be noted that the Vienna Convention limits the application of the receipt rule by establishing that once the acceptance has been dispatched, it is reasonable for the offeree be protected for his acceptance of the contract and that revocation of the offer should no longer be permitted. For several comments on the contract formation aspects in the Vienna Convention, see Bonnell, M.J., La formazione del contratto di compravendita, La vendita internazionale, La Convenzione di Vienna dell' 11 Aprile 1980, 39. Quaderni di Giurisprudenza Commerciale, 1981, P. 114-136; Farnsworth, E.A., Formation of Contract, International Sales: The United Nations Convention On Contracts For the International Sale of Goods, New York, 1984, P. 1-17.
22. Although it should be noted that the Vienna Convention limits the application of the receipt rule by establishing that once the acceptance has been dispatched, it is reasonable for the offeree be protected for his acceptance of the contract and that revocation of the offer should no longer be permitted. For several comments on the contract formation aspects in the Vienna Convention, see Bonnell, M.J., La formazione del contratto di compravendita, La vendita internazionale, La Convenzione di Vienna dell' 11 Aprile 1980, 39. Quaderni di Giurisprudenza Commerciale, 1981, P. 114-136; Farnsworth, E.A., Formation of Contract, International Sales: The United Nations Convention On Contracts For the International Sale of Goods, New York, 1984, P. 1-17.
23. The European Model EDI agreement establishes that an electronic message shall become effective upon receipt of the message. Thus, article 3.3. of the Model Agreement provides that an electronic contract will be concluded at the time and place where the EDI message constituting acceptance of an offer reaches the computer system of the offerer.
24. See Glatt, C., Comparative Issues in the Formation of Electronic Contracts, Law and Information Technology., Vol. 6, No. 1, 1998. P. 34-68; TEDIS I, The formation of Contract by Electronic Data Interchange, Brussels, 1991; TEDIS I, Situation Juridique des Etats Membres au regard du Transfert éléctronique de données, Brussels, 1989.
25. See Glatt, C., Comparative Issues in the Formation of Electronic Contracts, Law and Information Technology., Vol. 6, No. 1, 1998. P. 34-68; TEDIS I, The formation of Contract by Electronic Data Interchange, Brussels, 1991; TEDIS I, Situation Juridique des Etats Membres au regard du Transfert éléctronique de données, Brussels, 1989.
26. See Glatt, C., Comparative Issues in the Formation of Electronic Contracts, Law and Information Technology., Vol. 6, No. 1, 1998. P. 34-68; TEDIS I, The formation of Contract by Electronic Data Interchange, Brussels, 1991; TEDIS I, Situation Juridique des Etats Membres au regard du Transfert éléctronique de données, Brussels, 1989.
27. As H. Rowe in Legal Implication of Consumer-Orientated Electronic Commerce, [1998] 14 CLSR 235 correctly points out, in the United Kingdom, in the majority of cases where a company is likely to enter into contracts over the Internet, it will do so by way of an advertisement which, if worded correctly, would amount an 'invitation to treat'. This would seem to be similar according to German legislation.
28. Alcover Garau, G., La firma electrónica como media de prueba (valoración jurídica de los criptosistemas de claves asimétricas), Cuadernos de Derecho y Comercio, No 13,1994, P. 11-41.