Electronic contracts
Professor Simone van der Hof
20 november 2015
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Outline
• Defining electronic contracts • Electronic contracts in EU law
• Some other issues
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Q
What is a contract?
Traditional contracts
• Offer and acceptance
• Legal capacity
• Contractual freedom (party autonomy)
• Freedom of formalities (in principle)
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Freedom of form, unless…
• No writing or signature required, unless
the law requires…
• A written document
• A hand-written signature
• Notary, witnesses
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Q
What functions do formal requirements in
the law perform?
Functions of form requirements
•
•
•
•
•
•
•
•
•
Evidence
Identification
Authentication
Declaration of will
Protections against undue haste
Non-repudiation of origin or receipt
Notice of contents
Integrity
Originality
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Electronic contracts
• Contracts negotiated and concluded
through electronic messages
• Offer and acceptance via e-mail, apps,
chat, posts or in webshops
• By individuals (consumers or
professionals) and organisations
• By computers (automated e-contracts;
electronic data interchange)
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Electronic contracts in EU law
• National contract law
• Directive 2000/31/EC: electronic
commerce
• provides information duties for ISS
• facilitates e-contracting
• Proposed common EU sales law regulation
(see chapter Savin)
2
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Electronic commerce directive
• Free movement of information society
services (internal market basis)
• Legal certainty for business and protection
consumers
• Regulates several issues (information
duties, commercial communications,
electronic contracts and liability of
intermediary service providers)
• Is not a comprehensive law on ecommerce
2
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Electronic commerce directive
• Framework directive: supplemented by
other directives or regulations to provide a
framework for electronic commerce
• Other relevant EU laws: e.g. Consumer
Rights Directive and eID and trusted
services regulation • Focus on B2B and B2C (not specifically
consumer contracts) ➼ supplemented by
consumer acquis
2
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Information society service in online
sales of goods and services
• At a distance (behind a computer)
• By electronic means (e.g. webshop, e-mail)
• Provided at an individual request (not
broadcasting; what about hybrid ondemand/broadcasting services?)
• Normally paid service (incl e.g. accounts at
“free” social media or “free” information or
video services)
2
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Q
What provisions in the electronic
commerce directive are relevant for ISS
that engage in electronic contracting?
article 5
article 6
article 9
article 10
2000/31/EC
article
11
directive
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Obligations for ISS
general obligations:
• information obligation (article 5)
• commercial communications (article
6-8)
particular obligations:
• electronic contracts (articles 10-12)
2
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Information obligation (article 5)
Concerns all ISS
What? name of the service provider,
geographic address, contact details incl. email address, registration number trade
register, VAT number, clear prices
How? easily , directly and permanently
accessible (e.g. hyperlink on website)
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Commercial communication defined
(article 2)
Any form of communication Designed to promote, directly or indirectly,
the goods, services or image
Of a company, organisation or person
pursuing a commercial, industrial or craft
activity or exercising a regulated profession
➼ advertising, marketing, unsolicited e-mails
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Commercial communication
(article 6)
Information duty for ISS
• must be clearly identifiable as
commercial communication
• originator of communication must be
identifiable
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Commercial communication
(article 7)
Replaced by rule on spam in the e-privacy
and telecommunications directive 2002
(article 13): • Spam is prohibited
• Exception: opt-in, existing customers
and similar services (prior opportunity to
reject)
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Commercial communication
(article 8)
Regulated professions (notaries, solicitors,
etc) engaging in marketing practices as
ISS ➼ comply with professional rules
(independence, dignity and honor of the
profession, professional secrecy, fairness)
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Electronic contracts (article 9-11)
facilitate electronic contracting in
national laws
harmonization of certain aspects of
contract formation
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Ensure legal status for electronic
contracts (article 9)
Duty for member states:
Remove legal requirements of form that
create obstacles for entering into
electronic contracts (e.g. consumer credit
contracts which must be concluded in
writing)
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Example: Dutch Civil Code
Equalizing the legal status of written and
electronic contracts ➼ dependent on
particular conditions
contract is accessible to contracting
parties
authenticity of the contract sufficiently
ensured
moment of contract conclusion can be
determined with sufficient certainty
identity of the parties can be determined
with sufficient certainty
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Ensure legal status for electronic
contracts (article 9)
Exemptions are allowed, but….
only specific categories of contracts
notification to the commission
(exceptions and justification)
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Transparency in electronic contracting
Information obligations for electronic
contracting
(Legal and actual) transparency in the
contract formation process
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Information duty for ISS (article 10)
What?
• Different technical steps to conclude the contract
• Whether or not the contract will be filed and how to
obtain access (e.g. personal account)
• Technical means for identifying and correcting input
errors
• Languages offered for the conclusion of the contract
How?
• Clearly, comprehensibly and unambiguously and prior to the order being placed
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Technical steps
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Information duty for ISS (article 10)
What?
• Different technical steps to conclude the contract
• Whether or not the contract will be filed and how to
obtain access (e.g. personal account)
• Technical means for identifying and correcting input
errors
• Languages offered for the conclusion of the contract
How?
• Clearly, comprehensibly and unambiguously and prior to the order being placed
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Access to account
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Information duty for ISS (article 10)
What?
• Different technical steps to conclude the contract
• Whether or not the contract will be filed and how to
obtain access (e.g. personal account)
• Technical means for identifying and correcting input
errors
• Languages offered for the conclusion of the contract
How?
• Clearly, comprehensibly and unambiguously and prior to the order being placed
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Languages
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Information duty for ISS (article 10)
Further duties:
• Relevant codes of conduct adopted (e.g. codes of
good practice, trustmarks)
• It must be possible to store and reproduce contract
terms and general conditions (downloadable link;
printable page)
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Click-wrap
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Click-wrap
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Browse-wrap
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Immortal soul clause
By placing an order via this Web site on the first
day of the fourth month of the year 2010 Anno
Domini, you agree to grant Us a non transferable
option to claim, for now and for ever more, your
immortal soul. Should We wish to exercise this
option, you agree to surrender your immortal
soul, and any claim you may have on it, within 5
(five) working days of receiving written notification
from gamesation.co.uk or one of its duly
authorised minions.
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Legal transparency in e-contract
formation (article 11)
Transparency about the (moment) of
contract conclusion: Provider of ISS (e.g. webshop) must send
an acknowledgement of receipt to the
customer Without undue delay By electronic means (e-mail)
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Legal transparency in e-contract
formation (article 11)
Provider of ISS (e.g. webshop):
Makes available appropriate, effective and
accessible technical means Allowing the customer to identify and
correct input errors
Prior to the placing of the order
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QA
&