Making Electronic Contracts Reliable(論電子合同的合法與可靠性)

1、    Making Electronic Contracts Reliable(論電子合同的合法與可靠性)宋政平【學(xué)科分類】國際經(jīng)濟(jì)法【寫作年份】2002年【正文】     （這篇論文是結(jié)合新西蘭正在議會(huì)討論的電子商務(wù)法而寫的，從中讀者可以了解到英美法系關(guān)于合同及電子商務(wù)的基本原則，由于論文是用英文寫的，且有8000字左右，是否適合，請(qǐng)考慮。如必要我可以刪節(jié)并譯成中文發(fā)表。不求稿酬。）      SONG, ZHENGPING     

2、0;                                          MAKING THE ELECTRONIC CONTRACTS RELIABLE            LLM RESEARCH PAPER  

3、; LAWS 520 CYBERSPACE LAW               LAW FACULTY   VICTORIA UNIVERSITY OF WELLINGTON         2001   CONTENTS      ABSTRACT.1   MAIN TEXT2   IINTRODUCTIO

4、N.2   II CREATION OF ELECTRONIC CONTRACTS.3    ABasic forms of electronic contracts.3    BWhen and where is the acceptance effective4   1 Email-the postal rule, a controversial issue.4   2 Click wrap contracts-definite receipt rule.10   III

5、 HOW ARE ELECTRONIC CONTRACTS EVIDENCED    _ ELECTRONIC SIGNATURES.12    AWhy Are Electronic Signatures Needed.12    BWhat are the Functions of Signatures.13    CBrief Introduction to Digital Signatures 14   1 Significance of electronic signatures.15

6、   2 Technological neutrality and its problem. 15   3Consent to the use of electronic signatures.15   DAdmissibility of a Simple Email Signature.16   ESome Problems with Click-wrap Contracts.18   IV DIFFERENCT CIRCUMSTANCES OF ATTRIBUTION   

7、; OF DATA MESSAGES.20   AHackers Attacks21   BMinors Contracts.24   VRECENT LEGISLATION ON THE LEGALITY    OF ELECTRONIC CONTRACTS25   AUNCITRAL Model Law on Electronic Commerce.25   BUS.- Uniform Electronic Transactions Act 1999 (UETA).25

8、  CEU.-Directive 2000/31/EC of the European    Parliament and of the Council of June 2000.26   DAustralia- Electronic Transactions Act 1999.26   EThe Electronic Transactions Bill (ETB) of New Zealand.27   VICONCLUSION.28      ABST

9、RACT         This paper is to discuss the challenges to the law of contract posed by contracting on line. In order to make electronic contracts as reliable or enforceable as paper-based contracts, the author analyses the creation, evidencing, attribution and legality of

10、 electronic contracts on the basis of fundamental differences between the two types of contracts. The post rule applies to contracting by email while the receipt rule applies to contracting by click-wrap. Electronic contracts can be evidenced in the proceeding of court trial by means of electronic s

11、ignatures. The simple typed signature gives rise to legal effect although the evidential weight is in question. This paper emphasizes the importance of predictable and stable legal environment when talking about the attribution of data message especially in the cases of hackers attacks and minors co

12、ntracts. Recent legislation of different countries including New Zealand recognises the legality of electronic contracts.   Word length: 7,976.                                 

13、60;                                     IINTRODUCTION      With the development of the Internet, electronic commerce is fast growing in the world. As an im

14、portant part of electronic commerce, electronic contracts are drawing attentions of businesses. In fact, we experience electronic contract everyday. For instance, we pay money by credit cards. However, more and more business is being done on the Internet and it poses a challenge to the concept of tr

15、aditional contracts. Are those contracts concluded on the Internet legally binding? How much influence will it have on the present contract law?      The significant difference between electronic contracts and the traditional paper-based contracts is that electronic contracts are

16、 paperless. This characteristic gives rise to a legal problem that how to guarantee an electronic contract to be reliable or enforceable which can be simply solved by means of the paper documents and physical signatures in the case of the paper-based contracts. Identification of the trading partners

17、 and authenticity and integrity of contracts are in question. Since the means of creation of a contract has changed, the essential questions, like when and where a contract is formed, become uncertain and controversial. In order to facilitate the use of the new technology and gain the great economic

18、 and social benefits from electronic commerce, the United Nations and governments in different jurisdictions have been doing their best to make laws to regulate e-commerce.      This paper is intended to discuss those new questions arising in the Internet age. Part II will addres

19、s how electronic contracts are created by email and click-wrap. Part III will discuss how electronic contracts are evidenced when disputes arise. Part IV will discuss different circumstances of attribution of electronic data. Finally this paper is going to introduce current legislation on the legali

20、ty of electronic contracts. Although borderlessness is another characteristic of the Internet and does have impacts on on-line contracting, it is still not as important as the paperless characteristic. This paper will not discuss this topic.      IICREATION OF ELECTRONIC CONTRACT

21、S.      ABasic Forms of Electronic Contracts:      Andrew D. Murray thought there are two main methods of contracting on line. One is by email and the other is click-wrap method of contracting used on the World Wide Web.Andrew Hawker divided electronic contrac

22、ts into three categories: Electronic Funds Transfer (EFT), Electronic Data Interchange (EDI) and email.      In my view, e-contracts can be divided into two groups according to the environment they are in. The first one is the Internet contracts. They are exposed to the open envi

23、ronment and there is no a pre-agreed agreement binding their future contractual activities. Email and click-wrap belong to this category. The other is the non-internet electronic contracts. They are formed in a closed environment. Usually a pre-agreed agreement should be signed and therefore the mem

24、bership is granted. EFT and EDI are the typical forms.      Non-internet electronic contracts have been practiced for a long time and the pre-agreed agreements usually are “extremely detailed and explicit, very little litigation occurred in the area, making the structure they imp

25、osed a legal success.”In contrast, just because the contracting activities are exposed in an open environment and there is no a pre-agreed agreement between parties, the Internet contracts look unreliable and controversial. Therefore, the main challenge for electronic commerce is from the latter. &#

26、160;    BWhen and Where is the Acceptance Effective?      A contract is formed by the method of “offer ” and “acceptance”. An offer is a promise given by the offeror who intends to create legal relations with the offeree. If the offeree accepts the received offer f

27、rom the offeror, the contract is concluded and therefore legally binding, provided that other requirements including consideration, intention and certainty are satisfied.The process of creating a contract is still applicable to electronic contracts. UNCITRAL Model Law on Electronic Commerce says tha

28、t in the context of formation, “an offer and the acceptance may be expressed by means of data messages”.      According to the principle of the law of contract, there are two rules determining when and where the acceptance is effective: the postal rule and the receipt rule. The p

29、ostal rule means the contract is created at the moment when the acceptance is posted by the offeree rather than received by the offeror. The receipt rule means the contract is created at the moment when the acceptance is received by the offeror rather than posted by the offeree. The postal rule is b

30、est seen as an exception to the receipt rule.Basically the application of different rules depends on whether the communication is instantaneous or not. If the communication between parties is instantaneous, the receipt rule will be applied otherwise the postal rule is applied.     

31、60;Because the application of different rules is determined by different methods of communications, it is necessary to analyse email electronic contracts and click-wrap contracts separately.      1Email-the postal rule, a controversial issue.      Traditionall

32、y, email was treated as a communication method like telephone and telex. Therefore some commentators insisted that the receipt rule, rather than the postal rule apply to contracting by email on the grounds that the method of communication is instantaneous.However, other commentators contend that ema

33、il is not instantaneous way of communicationsand thus the postal rule shall apply.In the course of contracting by email the communications are not in real-time and the offeree is not sure that the offeror has successfully received its acceptance. In this regard, email is just like a normal letter. T

34、he outbox of the sender is equivalent to the post-box. The ISPs of both the sender and the recipient are like the post offices. The Inbox of the recipient is like the mailbox.      The legal consequence of application of the postal rule is that the contract is formed and therefor

35、e legally binding at the moment when the offeree sends its acceptance via email.      Initially the Law Commission held in its Electronic Commerce Part One that the post rule applies to email communications due to the above reason. It also pointed out if there is a circumstance t

36、hat the sender can directly access to the recipient to whom the email is sent, the receipt rule applies on the grounds that the communication is instantaneous.However, the Law Commission changed its mind in the Electronic Commerce Part Two on the grounds that the post rule will make the law uncertai

37、n and that it is not consistent with the Model Law Art 13, 14 and 15.It implied that the postal rule would not apply to electronic transactions.      In my view, apart from the similar characteristic between email and ordinary mail, the principle of placement of risk is in favor

38、of the postal rule when dealing with when and where a contract is formed by email. The post rule is intended to distribute risk to those most able to control it. The offeror selects the method for contracting which is not likely to rule out non-delivery and delayed delivery. When the offeree sends t

39、he acceptance by email it loses the control over the risk of non-delivery. It is unfair for the referee to assume the risk which ought to be distributed to the offeror.      As Ian Eagles said that the basic rule to determine when and where the acceptance is effective is the rece

40、ipt rule and that the postal rule is only a narrow exception.This is true when we take the United Nations Convention on Contracts for the International Sale of Goods into account. The Convention is in force under the Sale of Goods (United Nations Convention) Act 1994. It provides that    &

41、#160; for the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention “reaches” the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not

42、 have a place of business or mailing address, to his habitual residence.      Apparently the convention adopts the receipt rule and rules out the application of the postal rule when transactions cross the borders unless otherwise agreed by the parties to the contract. According t

43、o this principle, the acceptance sent by the offeree by email should reach the email inbox of the offeror and be available to read when the offeror open its inbox. At the moment when the email acceptance reaches the offerors inbox the contract is formed. However, the convention does not require that

44、 the acceptance be read by the offeror. As a result, businesses should be aware of the different legal consequences between the domestic contracts and international contracts.Since this provision of the Convention is only a default rule, the parties may agree in the contract that the acceptance is e

45、ffective when it is sent by the offeree.      If the postal rule applies to contracting by email, it is likely that the offeror doesnt know the time when the contract is binding until it receives the acceptance. If an offeror sends the same offer to more than one offerees, there

46、is a possibility that more than one offerees accept the offer and therefore more than one contract are formed and legally binding in terms of the post rule. Apparently the offeror will be in breach of the contracts. Just because communications via the Internet are convenient, fast and cheap, many bu

47、sinesses intend to take the advantage. They should be aware of the risk hiding behind the efficient emails. A smart offeror wont send the same offer to a number of offerees at the same time. The practical way is to specify the period of validity of the offer.      If the offeror

48、has several email addresses and one of them is designated for communications with the offeree in the course of contracting and the offeree doesnt send its acceptance to the designated email address, is the offeror bound by the acceptance? If so, is the post rule still applicable?     

49、 The Model Law provides that      if the addressee has designated an information system for the purpose of receiving data messages, receipt occurs:   (ii) if the data message is sent to an information system of the addressee that is not the designated information s

50、ystem, at the time when the data message is retrieved by the addressee.      Although the Model Law doesnt directly answer this question, it implies that the acceptance sent to the non-designated email address is still effective since it recognises this kind of communication as a

51、 one of the methods by which contracts are created. New Zealand Electronic Transaction Bill (ETB) adopts the same approach. It lays down that an electronic communications is regarded to be received when it comes to the attention of the addressee if the originator didnt send the message to the design

52、ated information system.      Apart from above statutory provisions, the principle of the contract law requires both the offeror and offeree treat each other in good faith in the ordinary course of contracting. Usually an offer will be open for the offeree for a fixed period and

53、the acceptance will be effective if it is sent within the period.There is no reason that the offeror rejects the acceptance when he or she receives it within the specified days because there is nothing against the offerors interests and conversely that is what the offeror intends to obtain.  &#

54、160;   Therefore, the claim of ruling out the effectiveness of the acceptance when the offeror receives it from the non-designated email address cant be justified. However, if the offeror clearly states that the acceptance should be communicated by a particular means and by that means only

55、, it will constitute a mandatory term in the offer. In this circumstance, the offeree can not be free to choose any other method otherwise it will fundamentally alter the term of the offer and it thus doesnt constitute an acceptance .      The American approach is different from

56、the Model Law and New Zealand ETB. There are no similar provisions governing this issue in the Uniform Electronic Transactions Act 1999 (UETA). In fact, the National Conference of Commissioners on Uniform State Laws does not agree that the acceptance is effective when the message is sent by the offe

57、ree to the non-designated email address of the offeror.      To assure that the recipient retains control of the place of receipt, subsection (b) requires that the system be specified or used by the recipient, and that the system be used or designated for the type of record being

58、 sent. Many people have multiple e-mail addresses for different purposes. Subsection (b) assures that recipients can designate the e-mail address or system to be used in a particular transaction. For example, the recipient retains the ability to designate a home e-mail for personal matters, work e-m

59、ail for official business, or a separate organizational e-mail solely for the business purposes of that organization. If A sends B a notice at his home which relates to business, it may not be deemed received if B designated his business address as the sole address for business purposes. Whether act

60、ual knowledge upon seeing it at home would qualify as receipt is determined under the otherwise applicable substantive law.      The next question is whether the postal rule is still applicable to this situation. As this paper discussed above, one of the reasons to apply the post

61、 rule is to achieve fair risk allocation. However, If the offeree sends the acceptance to a non-designated email address, although the non-designated email address belongs to the offeror, the offeror has not any obligation to the offeree to check its other email addresses regularly as it should do t

62、o the designated email address. In this circumstance, it is not fair if the offeror still assumes the risk of non-delivery caused by the offerees negligence. Therefore, the postal rule must not apply to this particular situation. New Zealands approach seems more persuasive.      

63、Since the acceptance is effective when it is sent by the offeree, the contract is formed in the offerees jurisdiction. If this is the case, it wont be desirable for businesses. They have to face numerous jurisdictions when disputes arise. However, it is only a default rule and business may incorporate a clause of agreed jurisdiction into the offer.