drt 6455 eCommerce Law
lesson 4 – eContract
associate professor
faculty of law
university of montreal
university of montreal chair
in e-Security and e-Business law
www.gautrais.com
What’s a contract?
2
Usually …
Offer + acceptance
3
Usually …
A
B
4
1386 CCQ. The exchange of consents is
accomplished by the express or tacit
manifestation of the will of a person to
accept an offer to contract made to him
by another person.
5
It’s too..
information + sanction
6
In other words…
communication + security
7
communication
VOCAL
security
HIGH
PAPER
ELECTRONIC
• phone
• tablecloth
• fax
• email
• sale contract
between two
professionals
• signed contract
• email with
aknowledgment
• Hammurabi code
• Wedding Contract
• Saxon Real
Estate Sale ( 100
B.C.)
• notarial deed
• contract using
PKI
• contract using
Third Party
LOW
MEDIUM
Examples
8
Very simple unless…
1385 CCQ. A contract is formed by the sole
exchange of consents between persons having
capacity to contract, unless, in addition, the law
requires a particular form to be respected as a
necessary condition of its formation, or unless the
parties require the contract to take the form of a
solemn agreement.
9
Unless…
EX: Some
Contracts,
evidence, etc.
EX: License,
arbitration
Clause, consumer
contract, etc
Writing
Signature
EX: Bill of lading,
evidence, etc.
Original
10
As we see in 1385 CCQ,
2 main questions
1 – Formalism
2 – eConsent
11
1
Formalism and eContract
12
United Nations Convention on the Use of
Electronic Communications in International
Contracts (2005) (CUECIC)
13
Why a such convention?
1) Remove legal obstacles to
eCommerce
2) Remove uncertainty
3) Provide uniform solutions
14
Convention Content?
1) Generality
–
–
–
–
Definitions (art. 4)
Exclusions (art. 2)
Party Autonomy (art. 3)
Interpretation (art. 5)
2) Form Requirements
– Writing
– Signature
– Original
3) eContract Formation
1.
2.
15
Form Requirements
1.
• Writing
• Signature
• Original
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Writing
1.A
art 9 (2). Where the law requires that a
communication or a contract should be in
writing, or provides consequences for the
absence of a writing, that requirement is
met by an electronic communication if the
information contained therein is accessible
so as to be usable for subsequent
reference.
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Writing
1.A
What’s is accessible so as to be usable for
subsequent reference?
18
Writing - Example
1.A
"Subsequent Reference"
• A law asks me to concluded a contract with
a writing
• I concluded the contract "online"
• 3 months after, my partner ask me a copy of
the contract
• It’s my obligation to send it to him
19
Writing, but…
1.A
Some countries doesn’t use this Condition
20
Example
1.A
2838 CCQ. In addition to meeting all other
legal requirements, the integrity of a copy
of a statute, an authentic writing, a semiauthentic writing or a private writing drawn
up in a medium based on information
technology must be ensured for it to be
used to adduce proof in the same way as
a writing of the same kind drawn up as
a paper document.
21
Writing
1.A
Subsequent Reference
versus
Integrity
22
simple Signature
1.B
United Nations Convention on the Use of Electronic
Communications in International Contracts (2005)
9. 3. Where the law requires that a communication or a
contract should be signed by a party, or provides
consequences for the absence of a signature, that
requirement is met in relation to an electronic
communication if:
• (a) A method is used to identify the party and to indicate
that party’s
• intention in respect of the information contained in the
electronic communication;
23
liability signature obligation
1.B
United Nations Convention on the Use of Electronic
Communications in International Contracts (2005)
9. 3. and
(…)
(b) The method used is (…) :
(i) As reliable as appropriate for the purpose for which
the electronic communication was generated or
communicated, in the light of all the circumstances,
including any relevant agreement;
24
Original
1.C
4. Where the law requires that a communication or a
contract should be made available or retained in its
original form, or provides consequences for the absence
of an original, that requirement is met in relation to an
electronic communication if:
(a) There exists a reliable assurance as to the integrity
of the information it contains from the time when it was
first generated in its final form, as an electronic
communication or otherwise; and
(b) Where it is required that the information it contains be
made available, that information is capable of being
displayed to the person to whom it is to be made available.
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Original
1.C
5. For the purposes of paragraph 4 (a):
(a) The criteria for assessing integrity shall be
whether the information has remained
complete and unaltered, apart from the
addition of any endorsement and any change
that arises in the normal course of
communication, storage and display; and
(b) The standard of reliability required shall be
assessed in the light of the purpose for which
the information was generated and in the light of
all the relevant circumstances.
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eContract Formation
2.
• Minimalist Approach
• Don’t Touch Usual Contract Concept
• Party Autonomy
27
eContract Formation
2.
• Time and place of dispatch and receipt of
electronic communications
• Use of automated message systems for
contract formation
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Time and Place of dispatch and
receipt is different from Time and
Place of conclusion !
2.A
1387 CCQ. A contract is formed when
and where acceptance is received by
the offeror, regardless of the method of
communication used, and even though the
parties have agreed to reserve agreement
as to secondary terms.
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A
DECLARATION
EMISSION
RECEPTION
INFORMATION
2.A
Acceptance
B
Offer
30
Time and place of dispatch and
receipt of electronic communications 2.A
• The time of dispatch of an electronic
communication is the time when it leaves
an information system under the control
of the originator
• The time of receipt of an electronic
communication is the time when it
becomes capable of being retrieved by
the addressee at an electronic address
designated by the addressee.
31
Time and place of dispatch and
receipt of electronic communications 2.A
• Presumption of the document
dispatched => place of business
• Presumption of the document
received => place of business
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Automated Contract
2.B
• It’s Legal!
– A contract formed by the interaction of an automated
message system and a natural person, or by the
interaction of automated message systems, shall not
be denied validity or enforceability on the sole
ground that no natural person reviewed or
intervened in each of the individual actions carried
out by the automated message systems or the
resulting contract.
• The capacity problem is solved
• But…
33
What’s an Automated Contract?
2.B
• Could be quite complex technologies as:
– EDI
– Software
• Could be very simple (common) ones as:
– Commercial Website Form
34
Complex Automated Contract
2.B
• Communication Contract prior to
Automated Contract
• Examples
– EDI Communication Contract
• Duration
• Evidence Convention
• Etc.
35
Simple Automated Contract
2.B
Contract
Between
Amazon
(Seller
+
Automated
Manager)
and
Me
(Buyer
+
Real User)
36
Simple Automated Contract
Amazon
2.B
Me
37
Simple Automated Contract
2.B
(UN Convention – art. 14)
Where a natural person makes an input error in an
electronic communication exchanged with the automated
message system of another party and the automated
message system does not provide the person with an
opportunity to correct the error, that person, or the party
on whose behalf that person was acting, has the right
to withdraw the portion of the electronic
communication in which the input error was made
+ 2 conditions
- User diligence
- No User Advantage
38
Conclusions
2.B
• UN Convention create a minimalist Legal
Base
• Important to develop this Least Common
Denominator
39
2
eConsent
40
Consent is …
1) communication
1
2) acceptance
2
41
1399 CCQ
1
« Consent may be given only in a free
and enlightened manner. »
42
Legibility
1
Contract = Information
43
But..
1
At least 10 pathological
contractual practices
44
1 - Readability
1
45
2 - Dynamic
1
7. Privacy; Monitoring the Services
We are under no obligation to monitor the
services, but we may do so from time to
time and we may disclose information
regarding User’s use of the Services for
any reason and at our sole discretion in
order to satisfy applicable laws,
regulations, governmental requests, or in
order to operate and deliver the Services
in an effective manner, or to otherwise
protect us and our Users. We agree to
comply with the terms of our Privacy
Policy as set forth on our FAQ website, as
it may be amended from time to time.
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3 - Lenght
1
47
1
Information = oxygen
48
Feldman v. Google (April 2007)
« AdWords Agreement gave reasonable notice of its terms. In order to
activate an AdWords account, the user had to visit a webpage which
displayed the Agreement in a scrollable text box. (…) the text of the
AdWords Agreement was immediately visible to the user, as was a
prominent admonition in boldface to read the terms and conditions
carefully, and with instruction to indicate assent if the user agreed to the
terms. That the user would have to scroll through the text box of the
Agreement to read it in its 14 entirety does not defeat notice because there
was sufficient notice of the Agreement itself and clicking “Yes” constituted
assent to all of the terms. The preamble, which was immediately visible,
also made clear that assent to the terms was binding. The Agreement was
presented in readable 12-point font. It was only seven paragraphs long –
not so long so as to render scrolling down to view all of the terms
inconvenient or impossible. A printer-friendly, full-screen version was
made readily available. The user had ample time to review the
document. »
49
4 - Hyperlinks
1
Linearity versus hyopertextuality
50
5 - Where’s the e-contract ?
1
51
6 – Multiple Legal Documents
1
Copyright
Privacy
Cookies
Terms and Conditions of Sale
Terms of Use
Limited Warranty
Service Contracts
Hardware Technical Support
Policy
Etc.
52
7 - Legal Terminologies
1
THE SERVICES PROVIDED BY US ARE PROVIDED "AS IS." WE MAKE NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY
WARRANTY REGARDING THE RELIABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE OF ITS SERVICES. USER UNDERSTANDS AND
ACKNOWLEDGES THAT WE EXERCISE NO CONTROL OVER THE NATURE, CONTENT OR RELIABILITY OF THE INFORMATION AND/OR
DATA PASSING THROUGH OUR NETWORK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, ITS DEALERS, AGENTS OR
EMPLOYEES SHALL CREATE A WARRANTY AND USER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. WE MAKES NO
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, REGARDING THE QUALITY, ACCURACY OR VALIDITY OF THE INFORMATION
AND/OR DATA RESIDING ON OR PASSING THROUGH ANY NETWORK. USE OF ANY INFORMATION AND/OR DATA OBTAINED FROM OR
THROUGH SERVICES PROVIDED BY US WILL BE AT USER’S OWN RISK. USER ACKNOWLEDGES THAT WE ARE NOT LIABLE FOR ANY
ERRORS OR INTERRUPTION IN THE INSTALLATION PROCESS OR IN PROVIDING THE SERVICES, WHETHER WITHIN OR OUTSIDE THE
CONTROL OF US. UNDER NO CIRCUMSTANCES SHALL THE USER HOLD US OR ANY OF OUR AGENTS, CONTRACTORS OR
REPRESENTATIVES RESPONSIBLE FOR ANY FORM OF DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT,
CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSSES) SUFFERED FROM, BUT NOT LIMITED TO ERRORS, DELAYS, LOSS OF
INFORMATION, DELAYS IN THE INSTALLATION OR PROVISIONING PROCESS, OR INTERRUPTIONS IN THE SERVICES CAUSED BY THE
USER, US OR A THIRD PARTY’S NEGLIGENCE, FAULT, MISCONDUCT OR FAILURE TO PERFORM. USER UNDERSTANDS THAT
TELECOMMUNICATION AND/OR NETWORK ACCESS SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED OR
UNSCHEDULED MAINTENANCE AND FOR OTHER REASONS WITHIN AND OUTSIDE OF THE DIRECT CONTROL OF US. UNDER NO
CIRCUMSTANCES DO ANY SUCH ERRORS, DELAYS, INTERRUPTIONS IN SERVICES OR LOSS OF INFORMATION NULLIFY OR MODIFY
THESE TERMS AND CONDITIONS. WE RESERVE THE RIGHT TO REFUSE OR TERMINATE SERVICES TO A USER AT ANY TIME WITHOUT
CAUSE. THE INTERNET CONTAINS UNEDITED MATERIALS, WHICH MAY BE SEXUALLY EXPLICIT, OR MAY BE OFFENSIVE TO YOU OR
OTHERS ACCESSING THE SERVICES. WE HAVE NO CONTROL OVER SUCH MATERIALS AND ACCEPT NO RESPONSIBILITY FOR SUCH
MATERIALS.
53
7 - Legal Terminologies
1
54
8 – Non-legal Titles
consumer contract
• terms of Services
• conditions of Use
• conditions of Sale
• notice
• legal
• waiver
• licence
• etc.
1
Privacy « contract »
• privacy
• confidentiality
• FAQ
• security
• legal
• waiver
• licence
• notice
• etc.
55
9 – Abusives Clauses
1
56
10 – Stupid Clauses
DELL (INCLUDING DELL’S PARENTS, AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES OR AGENTS) DOES NOT ACCEPT
LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN,
INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING
AVAILABLE FOR USE, LOST OR CORRUPTED DATA OR
SOFTWARE, PRODUCTS SOLD THROUGH DELL’S SOFTWARE
AND PERIPHERALS DIVISION, OR THE PROVISION OF
SERVICES OR SUPPORT. DELL WILL NOT HAVE ANY LIABILITY
FOR ANY DAMAGES ARISING FROM THE USE OF THE
PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT
LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES,
AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR
TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT OR
WEAPONS SYSTEMS. DELL WILL NOT BE LIABLE FOR LOST
PROFITS, LOSS OF BUSINESS, OR OTHER INCIDENTAL,
INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS
EXPRESSLY PROVIDED HEREIN.
57
10 – Stupid Clauses
« Do not use the ING DIRECT Web Site to communicate
to others, to post on the ING DIRECT Web Site, or
otherwise transmit to the ING DIRECT Web Site, any
materials, information, or communication that either
causes any harm to any person or that is illegal or
otherwise unlawful, including without limitation any
hateful, harassing, pornographic, obscene, profane,
defamatory, libellous, threatening materials which
constitutes or may encourage conduct that would be
considered, a criminal offence, give rise to civil liability,
promote the excessive, irresponsible or underage
consumption of alcohol, or otherwise violate any law or
regulation. »
58
10 – Stupid Clauses
« The limited warranty set forth below is given by
Canon U.S.A., Inc. (Canon U.S.A.) in the United
States or Canon Canada Inc., (Canon Canada) in
Canada with respect to the Canon-brand PowerShot
Digital Camera purchased with this limited warranty,
when purchased and used in the United States or
Canada. »
59
10 – Stupid Clauses
11. Governing Law
This Agreement is governed by the law of
Sharp’s Audio Visual.
60
some simple solutions
•
•
•
•
•
1
Short
Plain english
Humanity
Slow
Visual
61
Good Example:
1
www.creativecommons.ca/
62
63
64
65
1399 CCQ
2
« Consent may be given only in a free
and enlightened manner. »
66
2
A. Shrink wrap
B. Click wrap
C. Browse wrap
D. Others wrap
67
1 - shrink wrap
2.A
ProCD (US - 1996)
King (Canada - 1989)
68
2 - Click wrap – Dell Case
2.B
• Dell Computer c. Union des
consommateurs - Supreme Court
decision (May or June 2007)
• 2 main questions
– Arbitration and Consumer Contract
– eContract Validity
69
Click 1
70
Click 2
71
Click 3
72
Click 4
73
3 - Browse wrap
2.C
74
75
2.C
By using or signing up to use
Netscape.com, you signify that you
agree to these terms. You consent to the
AOL Network Privacy Policy and you
agree to receive notices and terms from us
electronically. If you do not agree, do not
use Netscape.com.
76
4 - Others wrap
2.D
• « Signwrap » or interference between
paper and electronic
• « Linkwrap » or Dell Case
• « Changewrap »
• « Rollingwrap »
77
Conclusions
• Law need "culture" (Old Law)
• Law needs "creation" (New Law)
78
vincent.gautrais@umontreal.ca
www.gautrais.com
79