Chapter 13
E-Contracts
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
Forming Contracts Online
• B2C-Business to Consumer E-Contracts.
• B2B-Business to Business E-Contracts.
• Online Offers Should Include:
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Conspicuous and Obvious Terms.
Remedies available (including Seller’s Refund).
Statutes of Limitation.
Dispute Settlement Provisions.
Disclaimers of Liability.
How information will be used by Seller.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Forming Contracts Online
• Online Acceptances:
– Shrink-Wrap Agreements-Enforceable
Terms.
• Case 13.1 People v. Network Associates,
Inc. (2003).
– Shrink Wrap Agreements-Proposals for
Additional Terms (not all terms are
enforceable).
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
3
Forming Contracts Online
• Offer (cont’d):
– Click-On (Click-Wrap) Agreements.
• Online version of “shrink-wrap” agreements.
• Acceptance by clicking on an “I Accept” button on
the website.
• Case 13.2 iLAN Systems v. NetScout Service Level
Corp. (2002).
– “Browse-Wrap” Terms.
• Case 13.3 Specht v. Netscape Comm. (2001).
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
4
E-Signatures
• Many contracts require a writing and a
signature to be enforceable.
• With E-Contracts, signatures have changed.
Signatures can be:
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Digital (with Cybernotary).
Signature Dynamics.
Smart Cards, Personal Identification.
A Mouse Click (attribution problems).
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
5
Laws Governing ESignatures
• States: some have e-signature legislation but
it is not uniform. Most based on UETA (see
below).
• Federal Law:
– E-Signatures (E-SIGN Act).
– E-Documents.
• Parties must agree to use electronic signatures.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
6
Partnering Agreements
• Sellers and Buyers who frequently do
business agree on the terms and conditions
of doing business electronically.
– Digital Signatures.
– Identification Codes.
– Mode of Transmission.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
7
UETA
• Similar to federal E-SIGN.
• Highlights:
– Parties must agree to conduct e-transactions.
• Can be implied by conduct/email.
– Attribution are procedures that ensures
identity of seller and buyer.
– Allows formation of contracts by e-agents.
– Notarization via digital signature.
– E-Mistakes can make a contract voidable.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
8
UCITA
• UCC governs the sale of goods (tangible and
movable).
• UCITA governs the license of information
(intangible good).
• Scope and Applicability of UCITA
– Applies to Computer Information
– May apply to all or part of a “sale”
– Parties can “opt out”.
• No longer viable after NCCUSL withdrew
support.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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