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A SMALL STEP FOR POTHIER – A LEAP FORWARD FOR JERSEY
Peter Harris
SYNOPSIS
This article aims to examine some aspects of the formation of contracts in circumstances where the parties to the relationship are communicating electronically. An analysis of the communication topography is followed by an application of the existing “real world” rules. Where those are inadequate, legislative attempts at rectifying the inadequacies in a number of jurisdictions are reviewed, leading to an examination of the Jersey approach, set out in the Electronic Communications (Jersey) Law 2000[1]. The article concludes with a brief consideration of how the maxim “la convention fait la loi des parties” might assist and recommendations as to how self-help might be the only real option in this virtual commercial world.
It is not my intention to attempt to resolve the private international law questions that arise out of introducing other jurisdictions into the factual matrix. That aspect of this topic will be the subject of a later article that will also deal with the practicalities of the Internet and the multi-jurisdictional business conducted from Jersey. For the time being I shall do no more than refer readers to the definitive text on the subject[2], albeit that it contains no direct reference to the subject matter of this article.
It’s all in the contract!
It is trite that the law of contract is the foundation upon which commerce is built. From the very earliest times, when tokens were introduced as primitive coinage, trade law has required the existence of well recognised rules as to the formation of commercial contracts. This article seeks to illustrate some of the difficulties that businesses will have in applying these rules to the electronic formation of contracts, and some ways in which those difficulties can be avoided or overcome.
Chitty refers to two competing common law definitions of a contract in English law, namely:
“a promise or set of promises which the law will enforce”; and
“an agreement giving rise to obligations which are enforced and recognised by law”.[3]
The latter definition is said by Chitty to be a relatively recent introduction under some influence from Pothier and hence is perhaps a better assessment of Jersey law, as Pothier has been said to be a surer guide than English authorities[4].
Article 1101 of the French Code Civil tells us that:
“Le contrat est une convention par laquelle une ou plusieurs personnes s’obligent, envers une ou plusieurs autres, à donner à faire ou à ne pas faire quelque chose.”
Professor Nicholas says that the primary distinction is in the English law requirement of consideration, which has no direct parallel in France.[5] I do not, however, wish to embark upon an overall examination of the law of contract formation in Jersey – a subject that merits special attention in itself. Instead, I shall rest on the pragmatic understanding that, technical details aside, a contract is formed when the contracting parties have agreed the terms of a commercial arrangement and that both French and English law acknowledge the significance of offer and acceptance in that process.
Rules have evolved over many hundreds of years and have been adapted to meet commercial developments as necessary: international trade, high street retail sales, and telephone ordering from catalogues to name but a few. It is fair to say that few people consider the finer points of the law of contract when entering into them, but this is primarily because the underlying principles are generally settled. The advent of electronic communication leads to new demands upon the law and upon any lawyer advising thereon.
Throughout this article I shall be assuming contracts between two parties, both of whom are in all respects competent and properly informed, save that they express no view as to the applicable law of their contract. The general rule is that acceptance of an offer is effective once received by the offeror. The most simple example of contract formation is where two parties, A and B, meet face to face and agree that A will sell something to B for a stated price. A offers to sell and B accepts the offer – both offer and acceptance are spoken and heard instantaneously and the moment of the formation of the contract is when B states his acceptance. The place of formation is the place where A and B meet and the applicable law will generally be clear, namely that of the jurisdiction in which they meet.
If A had telephoned B and stated the same words of offer, and B had stated the same words of acceptance, then the contract would again have been formed at the time when B spoke his words. Again the communication is instantaneous and thus the time of formation is when B speaks his words of acceptance. A similar result would ensue if the telex had been used[6].
Chitty suggests that a faxed acceptance should be treated as instantaneous unless the circumstances indicate to the offeree that the fax has not been received. It is further suggested that a similar rule should apply to e-mail, namely that if an unsuccessful attempt to send is apparent to the offeree he will know that the acceptance has not been received.[7]
The most significant exception to the general rule in English law concerning the moment in time that an acceptance becomes effective is the “Postal Rule”[8]. In circumstances where communication in the course of post was appropriate it was held that acceptance occurred when B posted his acceptance to A in a properly addressed and stamped letter. The rationale is that, having entrusted the delivery to the postal service, B could not do more and would not know when A had received it. The French approach is perhaps less rigid, applying the theories of expédition or réception depending on the facts of each case. Expédition is a quasi – Postal Rule approach, while réception holds that acceptance is effective upon arrival of the letter. Pothier, I am afraid, offers us no assistance.
THE COMMUNICATION FRAMEWORK
(1) Contracting via a computer
Both the Postal Rule and the expédition/réception test are of fundamental importance when electronic communication is in question but their impact is not clear-cut. A letter correctly addressed to A will be physically delivered to his address by the postal service of whichever country is appropriate. Electronic mail, however, is processed very differently and a brief explanation will assist those readers who are unfamiliar with the process. Assuming for this purpose that we are referring to Internet e-mail then both A and B will have an account for access to the Internet with an Internet Service Provider (“ISP”). Even if both A and B are resident in Jersey their ISP may not have its mail server – the computer that acts as deliverer and recipient - in the Island. Access will route via the telecommunications system of Jersey Telecoms in the first instance and then perhaps the equivalent provider in the UK, France, United States or elsewhere. The nature of the Internet is that every message is split into packets and sent by the optimum route or routes available. Each of the packets is individually labeled so that when it arrives at its destination it can be reassembled to reveal the correct message. If both A and B use the same Jersey ISP then the route will not be so convoluted and the message is unlikely at any stage to leave the Island. It is this most simple scenario that I shall use to analyse the process.
When A sends his offer electronically to B it is stored in the electronic equivalent of a letter box, accessible only by B, maintained by the ISP. When B next logs in he will be advised of a new message which B can then read. If he replies then the process is reversed and the acceptance is left in A’s letter box at the ISP. When A next logs in he will be advised of the new message and can then read B’s reply. Neither A nor B will be told that there is a message for him unless he initiates the process by logging on and thus either the offer or the acceptance may have been sent without B or A respectively being aware of it. Evidently, if B does not become aware of the offer there can be no contract at all and A will be left to consider whether he should wait even longer for a response or try an alternative method of communication.
If B reads the offer and sends an acceptance to A by return e-mail (which in the absence of express stipulation to the contrary can surely be assumed to be an acceptable method) then questions arise as to the effectiveness of B’s response and, in particular, as to the time at which it becomes effective.
Communication might be regarded as instantaneous between A and the ISP (the offer); between B and the ISP (retrieving the offer and sending the acceptance respectively); and between A and the ISP (retrieving the acceptance); but it is not instantaneous between A and B as to either the offer or the acceptance. The general rule would tell us that the acceptance is only effective when it is read by A and the time of formation would follow accordingly. But of course, the general rule requires instantaneity. The Postal Rule does not require instantaneity and, if it applied, would therefore tell us that the acceptance was effective when sent by B to the ISP. But the Postal Rule arose in circumstances where the action of B (at least in so far as the parties were concerned) was enough to get the acceptance direct to A: with e-mail, B’s action alone is insufficient. There is no authoritative answer to the question. The more cautious opinion would probably be that the general rule should apply because we are in the relatively early stages of Internet contracting and do not have absolute confidence in delivery mechanisms. Chitty suggests that this should only be the case in the absence of notification to B that his acceptance has not been successfully sent[9]. The weakness in that approach is that it does not take account of the variety of ways in which A’s mail server may have been set up to deal with incorrectly addressed e-mail. For example, A’s e-mail address might be ‘A.phillips@xyz.com’ but, because of the risk of a common typographical error, it might also accept ‘A.philips@xyz.com’. If A’s own system does not accept the latter, but the message is forwarded by the ISP to xyz.com, then it will not be “bounced back” to B until A’s system has tried to receive it and sent it back via the ISP for retrieval by B. B will only become aware of this when he next logs in, which may be some considerable while later or, conceivably, never. In such a case, B would not become aware of the non-receipt by A of the acceptance until it was perhaps too late for him to seek a remedy.
This scenario is the simplest possible but can be escalated to any two-way e-mail communication. The difficulties are compounded when A and B are resident in two different jurisdictions and their respective ISP’s in two further jurisdictions. If one factors into the problem national laws about consumer protection, contractual formalities and the like, then it can very quickly be seen how complex a situation it could become.
(2) Contracting with a computer
Part (1) above presupposes that A and B are both human beings who make individual decisions respectively to offer and to accept the terms of the contract. If either, or both of them, is a computer programmed to respond to the other then the situation can seem more confused, although it may in fact be simpler.
Although some might argue that a useful comparison can be made with an automatic vending or car park machine there is a crucial difference. In that context the presence of the machine is the offer and the payment by the customer is the acceptance[10]. The contract is created instantly. Lord Denning MR described an automatic vending machine as “a booking clerk in disguise[11],” suggesting that dealing with such machines was no different to dealing with a person and resulted in an immediate contract. Communication with a computer via the Internet, however, is not “face to face”. Therefore, while contracting with a machine is not novel per se, new considerations arise when that machine is located elsewhere.
Electronic commerce (“e-commerce”) is a term that has a multitude of definitions, and the use of e-mail by two people to agree the terms of a “real” contract may well fall within the parameters of some definitions of e-commerce. E-commerce more strictly described occurs when all or part of the contract is delivered electronically; in such cases it will be delivered by a computer programmed to respond to preset criteria, usually involving payment before delivery. To understand the effect of this we must turn again to some basic contract law.
In my example above, A was making an offer and B was accepting it. It is well known to the English lawyer that an offer for the purposes of the law of contract may not be the same as an offer in the mind of the layperson. The distinction between an offer by A, B’s acceptance of which will be binding upon A, and an invitation to treat expressed by A, to which B can respond with an offer for A to accept or reject as he wishes, is second nature in the context of retail trade[12]. The distinction is all but unknown in French law. But how does this rule apply when the vendor (A) is a computer, and the “shop window” is a web site visited by B? Again we must look at the technical structure.
Another primary function carried out by many ISPs is the hosting of web sites. The ISP has a server permanently connected to the Internet on which space will be allocated to clients who wish to have information accessible via the World Wide Web. That information might be no more than simple contact details or might be interactive, so that a viewer of the web site can get more specific information by keying in personal information. The next stage in the evolution of an e-business contract might be to allow the viewer to purchase goods or services by interaction with the web site; this interaction is effectively with the computer operated by the ISP. The ISP has no direct control over the e-business itself – although within the hosting contract there would normally be covenants by the client as to the nature of the business – and the ISP will generally be regarded as transparent in the contractual process.
Just as the ISP may be hosting A’s e-mail in any jurisdiction, so might it be hosting the web site. In any event, a back-up or mirror server might be in a separate jurisdiction. If A, and A’s web server, and B, and B’s mail server, are all in Jersey then there is unlikely to be any dispute as to the jurisdiction applicable to any concluded contract, but the time of formation of the contract may have an importance for other reasons. The rationale of a retailer not being bound to sell to every customer who enters his retail premises may be equally appropriate to the on-line sale of tangible products, where the risk of exhaustion of stock is equally present. That would not be true for digital products but this distinction (between tangible and intangible goods) does not appear to be accorded different treatment under either English or French law.
Two interesting practical illustrations of the problem have recently occurred. In 1999, the distance vendor Argos inadvertently displayed televisions for sale on its web site at a price of £2.99 rather than £299.99. The error was not noticed until a great number of potential customers had attempted to bind Argos to sell at the incorrect price. An examination of events apparently disclosed that a minority of those putative purchasers received an acknowledgement of their order from Argos. Whether the web-site was offering and the customer was accepting, or the web-site inviting offers and the customer making the offer, is a question of vital importance. Argos argued that the latter was the true position, although that still left an argument to be won in those cases where the customer’s response had itself been acknowledged. In my opinion, such a totality of correspondence should bind a vendor to sell at the stated price. In the event of that scenario repeating itself in France, then there would appear to be less doubt that the vendor would be bound. The Argos dispute appears to have been very quietly settled out of court in favour of the customers, as was the second illustration, a USA case which arose in 2000. The online retailer Buy.com settled a class action after offering a computer monitor for sale at $165 rather than the correct price of $588. There were some 7000 takers and the company said that it would honour the price only for the small number of monitors in stock. This displeased the remainder and the class action ensued. Settlement cost the company in the region of $575,000. Its terms of trading now include provision for cancelling transactions at an incorrect price. The clear message is to ensure that website sale details are correct.
LEGISLATIVE INTERVENTION
The first significant effort to bring statutory clarification was the UNCITRAL Model Law of 1996 (the “Model Law”).[13] Article 15 deals with the question of the time and place of dispatch and receipt of communications. It provides rules in default of agreement between the parties and states that:
“(1) Unless otherwise agreed between the originator and the addressee, the dispatch of a data message occurs when it enters an information system outside the control of the originator or of the person who sent the data message on behalf of the originator.
(2) Unless otherwise agreed between the originator and the addressee, the time of receipt of a data message is determined as follows:
(a) if the addressee has designated an information system for the purpose of receiving data messages, receipt occurs:
(i) at the time when the data message enters the designated information system; or
(ii) if the data message is sent to an information system of the addressee that is not the designated information system, at the time when the data message is retrieved by the addressee;
(b) if the addressee has not designated an information system, receipt occurs when the data message enters an information system of the addressee.
(3) Paragraph (2) applies notwithstanding that the place where the information system is located may be different from the place where the data message is deemed to be received under paragraph (4).
(4) Unless otherwise agreed between the originator and the addressee, a data message is deemed to be dispatched at the place where the originator has its place of business, and is deemed to be received at the place where the addressee has its place of business. For the purposes of this paragraph:
(a) if the originator or the addressee has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction or, where there is no underlying transaction, the principal place of business;
(b) if the originator or the addressee does not have a place of business, reference is to be made to its habitual residence.”
The Model Law has been adopted with minor changes to Article 15[14] in Singapore and Bermuda[15]. The Electronic Transactions Act 1999[16] in Australia and the Electronic Transactions Act 2000[17] in the Isle of Man use Article 15 but with more significant changes.[18] The United Nations’ rationale was that the adoption of the Model Law would assist all States significantly in enhancing their legislation governing the use of alternatives to paper-based methods of communication and storage of information. The UN recommended that all States give favourable consideration to the Model Law when they enact or revise their laws.[19] Accordingly, the drafting instructions prepared under the auspices of the Jersey Financial Services Commission for legislation in Jersey adopted the model, including Article 15.
Both the United Kingdom Government and the European Commission have taken a different approach. The UK Electronic Communications Act, presented for consultation in 1999, bore no resemblance to the Model Law and made no reference to this issue. The EU Directive “on certain aspects of e-commerce in the Internal Market”[20] deals only with the situation where a consumer is responding to an offer made by a “service provider”, and only within the Internal Market. Whilst it is therefore instructive in terms of the analysis, it will have restricted impact on a Jersey-based business or consumer. The structure envisaged in the final version of the Directive is simpler than that proposed in the draft text, which stated that:
“the contract is concluded when the recipient of the service has received from the service provider, electronically, an acknowledgement of receipt of the recipient's acceptance and has confirmed acknowledgement of receipt.” (sic)
The final version merely requires that “the recipient has received from the service provider, electronically, an acknowledgement of receipt of the recipient’s acceptance”.[21] The principles that an “acknowledgement of receipt is deemed to be received when the recipient of the service is able to access it” and that “the service provider is obliged to immediately send the acknowledgement of receipt” must be applied. The recipient being “able to access it” is in some respects like the Chitty test, because if the sender of a message does not receive notice that his attempt at sending has been unsuccessful then that will generally mean that the intended recipient of the message is able to access it even if he does not do so.
Electronic Communications (Jersey) Law 2000 (the “2000 Law”)
The 2000 Law was adopted by the States on July 19th, 2000 and came into force on January 1st, 2001. In essence, its purpose is to clarify certain issues relating to electronic communications thereby allowing people to carry out transactions electronically with as much certainty as they would a traditional transaction. The 2000 Law is relatively simple in both form and content and, as with the legislation referred to above, will be recognised by anyone familiar with the Model Law. Part 2[22] of the 2000 Law is relevant for the purposes of this article but in order to ascertain more clearly its nature and purpose it is worth looking briefly at the other substantive Parts, as it deals with the general principles, which are discussed in depth below.
Part 3[23] sets out a framework for compliance with requirements to produce and retain documents; to record, give and allow access to information; and to provide signatures. Its effect is to allow these acts to be done electronically as well as by traditional methods, and is an important aspect of the States’ initiative to make electronic access to governmental and other official information a reality.
Part 4[24] contains provisions regarding the civil and criminal liability of ISPs. The premise is that ISPs are merely a conduit for information, and thus should be protected from strict liability. In all cases, discontinuing the handling of offending material will enhance the likelihood of escaping liability. In respect of criminal liability there is the added requirement of notifying the police. The provisions are by no means watertight as there is still a need for subjective analysis as to what constitutes offending material. Furthermore, there is a concern that ISPs will be subjected to gagging actions. Much of the litigation around these issues has, unsurprisingly, arisen in the USA. Arguments have often been between the right of protection of one individual against the right of free speech of another. The most celebrated English case is of limited assistance because argument centred on a defence under the Defamation Act 1996, of which there is no equivalent in Jersey[25].
Part 2 of the 2000 Law provides that information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in electronic form[26] and that, in the formation of a contract, unless the parties have otherwise agreed or the law expressly or impliedly otherwise provides, the offer and the acceptance of the offer may be expressed by means of an electronic communication.[27] Whether applying the general rule or some form of Postal Rule, the Law gives certainty to matters of fact that fall to be considered. Having confirmed that a contract may be formed electronically, the Law continues to consider the time of dispatch and receipt, and the place of dispatch and receipt, of the relevant communications and sets out default rules in that regard.
An electronic communication is deemed to have been dispatched when it enters an information system outside the control of its originator or a person dispatching the electronic communication on behalf of its originator.[28] Information system is defined as -
“a system designed to generate, dispatch, receive, store or otherwise process information”,
and information includes -
“data, text, sounds, images, codes, computer programs, software and databases”[29].
Article 6 goes on to state that unless the originator and addressee have otherwise agreed, the time of receipt of an electronic communication is -
“(a) if its addressee has designated an information system to receive the electronic communication, when it enters that information system; and
(b) in any other case, when it is retrieved by the addressee.”
Applying these criteria to our working example, B has dispatched his acceptance when his message leaves his information system. This will ordinarily be as soon as he presses the “Send” button if he is at the time logged on to his ISP or alternatively if he has direct access to the Internet. If A has designated an information system to receive the message it will be received as soon as it enters that system – if A has not done so it will be received as soon as he retrieves the message. There is no specific statement of what constitutes the designation of an information system for this purpose but, in the explanatory note to the Model Law, the view is expressed that the mere placing of an e-mail address on headed notepaper would not suffice. Whether designation must be express for the originator to rely on Article 6(a) of the 2000 Law is a moot point. It may be that the fact that an offer has been sent electronically is sufficient to designate the information system from which it was sent. This is something for the originator to consider in each case. This is all the more important considering the effect of Article 6(b), which goes further than the “Chitty test”. It states that the addressee must not simply be able to access it, for example if it is in the mail box at his ISP, but rather that he must have retrieved it, such as by logging on to the ISP.
In the situation where B is the offeree, the contract will be formed either at the time of dispatch (Article 5 - if a “Postal Rule” applies) or at the time of receipt (Article 6 - if the general rule applies). The answer to this question may have consequences in private international law in so far as the lex loci contractus is relevant in determining the proper law of the contract.
The place of dispatch and receipt of the electronic communication is dealt with in Article 7 of the 2000 Law which states:
“(1) Unless otherwise agreed between the originator of the electronic communication and its addressee, an electronic communication is to be taken –
(a) to have been dispatched at the place where its originator has his place of business; and
(b) to have been received at the place where its addressee has his place of business.
(2) For the purposes of applying paragraph (1) to an electronic communication –
(a) if its originator or addressee has more than one place of business, and one of those places has a closer relationship to the underlying transaction, it is to be assumed that that place of business is the originator's or addressee's only place of business;
(b) if its originator or addressee has more than one place of business, but paragraph (a) does not apply, it is to be assumed that the originator's or addressee's principal place of business is the originator's or addressee's only place of business; and
(c) if its originator or addressee does not have a place of business, it is to be assumed that the originator's or addressee's place of business is
(i) the place where the originator or addressee ordinarily resides; or
(ii) in the case of a company, its registered or similar address.”
The identity of the contracting parties is of practical importance and the need to ensure the integrity of that information is fundamental to the development of electronic commerce. Contrary to the belief of some, the 2000 Law does not have provisions that deal with unequivocal identification, and nor does the Model Law, but rather it sets out rules to assist in the attribution of electronic communications. These do not impact on the substantive law as Article 8(7) expressly states - “Nothing in this Article affects the law of agency or the law on the formation of contracts.”
Consideration of “la convention fait la loi des parties”
Because the 2000 Law only provides default rules, it will be for the parties to determine which rules apply to their own circumstances if they do not wish the default provisions to apply. The incorporation of express terms will only be sufficient to the extent that it is permitted and whilst the maxim la convention fait la loi des parties applies in Jersey, such freedom to contract is not always evident elsewhere.
Essentially, the default nature of the 2000 Law allows the maxim to remain, maintaining the essential freedom of contract seen in Jersey law[30]. However, whilst this flexibility exists, the maxim will not permit extreme application of clauses[31] and the freedom is not absolute. In order to appreciate this freedom, it is worth considering the impact of legislation in other jurisdictions and the impeding effect thereof.
In the United Kingdom the Unfair Contract Terms Act 1977 and the Sale of Goods Act 1979 are perhaps the two most well known pieces. The former applies, predominantly, to terms that purport to exclude or restrict liability and its primary purpose is to protect consumers and weaker contractual parties. The latter is more specifically geared towards the protection of consumers and refers to the quality and fitness of goods. There is also legislation that has stemmed from Europe, the Unfair Terms and Consumer Contracts Regulations 1999 being a recent example.
In fact the growth of European legislation cannot be underestimated and the Distance Selling Directives are of the greatest significance here, due to their direct relationship to e-commerce. The purpose of the Distance Selling Directive[32] is the protection of consumers in respect of distance contracts, defined as being contracts formed “without the simultaneous physical presence of the supplier and the consumer”. The target is to create a harmonised minimum standard of protection in member states. This includes the obligation of the supplier to provide certain information[33], the right of the consumer to withdraw from the contract[34], and the imposition of a time limit on the performance of the contract[35]. The Directive did not originally deal with all categories of business, in particular, financial services. These are dealt with under a proposed amendment[36]. There are differences in the requirements, due to their varying nature, e.g. the right of withdrawal from the transaction. The incorporation of the Directive into domestic legislation is a matter for the individual member states.
Both Germany[37] and Italy[38] have provided for protection above the Directive standard and although their focal points were similar, the changes themselves differed. This typifies the onerous burden imposed on businesses to research individual national legislation if transborder contracts are envisaged.
There are further examples of restrictions arising out of national legislation. In Germany, for example, “two for the price of one offers” and free offers to promote goods are prohibited[39]. In France, the operators of the Yahoo.com were compelled to introduce technological means to deny access to viewers in France. Although based in the U.S.A., a French court held that the advertising for sale by auction of Nazi memorabilia was contrary to French law because it was viewable by French residents. This approach has also been evidenced in domain name disputes[40].
The simple truth is that without extensive, and thus expensive, research in individual cases there can be no absolute certainty. The development of e-commerce is a such an early stage that national courts have not coherent code to apply[41]. Obtaining project specific advise and the adoption of clearly states and reasonable express terms is the best way to minimise risk. Thus the ability to create contracts relatively freely in Jersey is consistent with to the need for a self-help method of developing electronic commercial contracts.
SUMMARY
There is still some uncertainty at present in relation to the formation of contracts and the 2000 Law can offer only limited assistance in resolving that uncertainty. Some problems may be avoided by the use of express terminogy in communications leading up to the contract but there will remain issues resulting from the extra-territorial nature of the Internet. Only the largest organisations are able to take advice globally on proposed interjurisdictional contractual arrangements, and this is beyond the scope of most Jersey businesses.
Jersey does not face unique problems but there is a burden on the Island’s legislators and administrators to keep up to speed with developments, especially in regard to electronic signatures, to ensure that Jersey provides fertile territory for digital business and that no unnecessary barriers are erected. If Pothier were alive today he would surely be comfortable with the introduction of the 2000 Law, providing as it does a degree of certainty in contract formation, whilst preserving the freedom of the parties so long enshrined in our law.
Peter Harris is an advocate of the Royal Court and is a partner of Crills, P.O. Box 72, 44 Esplanade, St. Helier, Jersey, JE4 8PN.
[1] The full text is available on the web site of the Jersey Legal Information Board at http://www.jerseylegalinfo.je
[2] Dicey & Morris, The Conflict of Laws, 12th edition, 1993
[3] Chitty on Contracts 27th ed. page 1
[4] Viscount v Treanor 1969 JJ 1243 at 1245
[5] Nicholas, The French Law of Contract, Clarendon Press Oxford, 19922nd ed. page 145
[6] Entores Limited v Miles Far East Corporation [1955] 2 Q.B. 327
[7] Chitty op. cit. page 112
[8] The Rule was first expounded in Adams v Lindsell (1818) 1 B. & Ald. 681
[9] Chitty op.cit. page 112
[10] Thornton v Shoe Lane Parking Ltd [1971] 1All ER 686
[11] Ibid at page 689
[12] Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd. [1953] 1 QB 410
[13] The United Nations Commission for International Trade Law was charged in 1966 with the task of progressive harmonization and unification of the law of international trade and in that respect to bear in mind the interests of all peoples, in particular those of developing countries, in the extensive development of international trade
[14] Electronic Transactions Act 1998/http://www.cca.gov.sg/framecontent.html
[15] Electronic Transactions Act 1999/http://www.bmck.com/ecommerce/bermuda-eta.doc
[16] The Act was introduced into the Commonwealth Parliament on June 30th, 1999. It was based on the UNCITRAL Model Law, as modified by the recommendations of the Electronic Commerce Expert Group. See http://www.austlii.edu.au/au/legis/cth/consol_act/eta1999256/index.html
[17] Electronic Transactions Act 2000. See http://www.gov.im/infocentre/docs/etbill2000.html
[18] Both of them state that when no information system is designated by the addressee the time of receipt is when the message comes to the attention of the addressee
[19] Resolution adopted by the General Assembly on December 16th, 1996
[20] Directive 98/325 17.8.99. It should be noted that the Commission’s proposal was only intended “to remove legal insecurity by clarifying in certain cases the moment of conclusion of the contract, whilst fully respecting contractual freedom” (my emphasis)
[21] Article 11. As in a minority of the Argos customers, assuming the web site to have been the offer
[22] Articles 3-9
[23] Articles 10-18
[24] Articles 19-21
[25] Godfrey v Demon Internet International [1999] Masons CLR 267. The ISP (Demon) was notified of allegedly defamatory material about the plaintiff on a newsgroup distributed through Demon’s server. Demon chose to leave the material in place after that notification and thus could not avail itself of the defence of innocent dissemination.
[26] Article 3
[27] Article 4
[28] Article 5
[29] Article 1
[30] Donnelly v Randalls Vautier Ltd. 1991 JLR 49, “Contracts are sacrosanct”
[31] Lydan Developments Ltd. v Medons (Jersey) Ltd 1992 JLR 135, page 143
[32] Distance Selling Directive (97/7/EC)
[33] Articles 4 and 5
[34] Article 6
[35] Article 7
[36] Proposal for a Directive of the European Parliament and one of the Council concerning the distance marketing of consumer financial services, COM (98) 468
[37] Distance Selling Act, implemented June 30th, 2000
[38] Legislative Decree, May 20th, 1999
[39] Graham Smith Intellectual property partner at Bird & Bird, in “Will EC laws net gains for firms?” 06/09/99 http://www.twobirds.com
[40] SGV v Brokat (1998), litigation relating to domain names, the French view being that they are the correct jurisdiction when accessed on a computer in France
[41] Experience in the United States, the most mature e-commerce market, shows that there is not even a coherent code amoung the individual states (a subject deserving of separate attention)