Acceptance in Internet Transactions

It is likely that in the future an increasing amount of business will be conducted over the internet, either by means of email or, particularly in the case of consumer transactions, via a website. In the latter case, the consumer may be actually receiving a product over the web (for example, downloading a piece of software or a video or music file) or placing an order for goods to be delivered by the post or courier service. How do the principles outlined above apply in these situations?

In relation to email, as has been assumed in the previous discussion, there seems little reason to distinguish between this form of communication and other types of ‘instantaneous’ communication such as telex or fax. The contract will be formed at the earliest when the acceptance is received by the offeror’s email system, and is available to be read. At the latest, it should be regarded as complete once the time has passed at which it would be reasonable to expect the acceptance to have been read. Since most email systems will return an error message to the sender if delivery has not been possible, then there is no real need here for any other procedure for acknowledgment of receipt.

As regards contracting via a website, some of the potential problems were indicated by events in September 1999, when a retailer was found to be indicating on its website that televisions were available for the price of £3. This was a mistake: the price should have been £300. However, before it could be rectified, a large number of people had attempted to buy a television at the lower price. The crucial question was whether by responding to the information contained on the website, these people were accepting the retailer’s offer, or were themselves making an offer to buy at that price. Given that the purchasers would have had to submit credit card details in order to pay for the goods, and the retailer would presumably have reserved the right not to accept these as satisfactory, the better view would seem to be that the purchasers were making the offer to buy. The advertisement of thetelevisions would thus be simply an invitation to treat. The seller would be free to accept or reject the offers from the potential purchasers. The contract would be made where the seller had acknowledged to the purchaser that his or her offer was accepted, either by means of a direct response on the website or by a subsequent email.

This area has also been the subject of proposals from the European Commission, which has issued a directive dealing with a range of issues on electronic commerce, including the issue of ‘time of acceptance’. The final version of the Directive on Electronic Commerce was adopted in June 2000 (Directive 2000/31/EC). Article 11 provides that:

Member States shall ensure, except when otherwise agreed by parties who are not consumers, that in cases where the recipient of the service places his order through technological means, the following principles apply:

- the service provider has to acknowledge receipt of the recipient’s order without undue delay and by electronic means;

- the order and the acknowledgment of receipt are deemed to be received when the parties to whom they are addressed are able to access them.

These provisions are much vaguer than earlier drafts, which seemed to assume that it is the owner of the website who will be making the offer, and the purchaser who will be accepting it. Since, as we have seen, by far the most likely situation under English law is that the service provider will be seen as making an invitation to treat, with the purchaser making the offer, this would have meant that the requirements of the Directive would have had very little impact. The final draft, however, seems apt to cover the situation where it is the customer who makes the offer. In such a situation, English law in any case requires the offer to be accepted before it is effective, and this will satisfy the need for an acknowledgment of the order. If the offer is made by the website owner, however, and accepted by the customer, the Directive will place an additional requirement on the website owner to acknowledge the acceptance. In all cases, however, the Directive makes the test of when a communication takes place, the point at which it can be accessed by the recipient.

The Directive has been implemented in English law by the Electronic Commerce (EC Directive) Regulations 2002, the relevant sections of which came into force on 31 August 2002.

Regulation 11, entitled ‘placing of the order’, which deals with the matters covered by Art 11 of the Directive, states as follows:

1) Unless parries who are not consumers have agreed otherwise, where the recipient of the service places his order through technological means, a service provider shall -

(a) acknowledge receipt of the order to the recipient of the service without undue delay and by electronic means; and

(b) make available to the recipient of the service appropriate, effective and accessible technical means allowing him to identify and correct input errors prior to the placing of the order.

2) For the purposes of paragraph l) (a) above -

a) the order and the acknowledgment of receipt will be deemed to be received when the parties to whom they are addressed are able to access them; and

b) the acknowledgment of receipt may take the form of the provision of the service paid for where that service is an information society service.

3) The requirements of paragraph 1) above shall not apply to contracts concluded
exclusively by exchange of electronic mail or by equivalent individual
communications.

The word ‘order’ in reg ll l) (b) (though not necessarily in reg ll l) (a)) means the contractual offer (reg 12).

The sanctions for non-compliance are that non-compliance with reg ll l) (a) gives a right to the customer to sue the service provider for damages for breach of statutory duty (reg 13). Non-compliance with reg ll l) (b) gives the customer the right to rescind the contract (reg 15).

The wording of the Regulations seems to confirm the suggestion made above that it will generally be the customer who makes the offer. As noted above, reg ll l) (b) requires the service provider to make available to customer ‘appropriate, effective and accessible technical means allowing him to identify and correct input errors prior to the placing of an order’. Regulation 12 then provides that ‘order’ in reg ll l) (b) means ‘the contractual offer’. The service provider will thus be able to argue that any screen which they display in response to a costumer’s initial ‘order’ is simply fulfilling the requirements of reg ll l) (b) and that reg 12 means that this must be taken as preceding ‘the contractual offer’. The ‘contractual offer’ then becomes customer’s clicking of a button confirming that he or she is happy with the terms set out on the page; so, although the Regulations do not on their face purport to affect the rules of offer and acceptance, it is clearly arguable that they do lead to particular conclusions about the stage at which an offer is made.

Дата добавления: 2015-10-30