Actknowledging the validity of electronic transactions is the necessary complement of the legal value of the electronic signature. This issue is the follow-up of the EDI question that had arisen in the middle of 1970s and has similarly showed the lack of legal recognition of the electronic contracting. Normally, the contract is formed between two parties when there is an actual consent to conclude such an agreement. The question arises whether clicking on an icon "I accept" or "I agree" amounts to the acceptance of the contract. Not only this question of the reality of the consent can be somewhat complex in an electronic process, but the evidence and validity of the electronic agreement can be difficult to reach in some countries which still impose formal requirements.
These are both obstacles that constitute the mail background of the relevant provisions of the Draft E-Commerce Directive.
Article 9 requires the member States "to ensure that their legislation allows contracts to be concluded electronically. Member states shall in particular ensure that the legal requirement applicable to the contractual process neither prevent the effective use of electronic contracts nor result in such contracts being deprived of legal validity because of the fact they have been concluded electronically". This article is formulated very broadly and seeks to cover any stage of the contractual process. This would mean that the member states would have to assess and systemactically review any rule which might prevent, limit or deter the use of electronic contracts. Not only the form requirements, such as an obligation to produce a 'paper', laid down in national legislation, but also any rule which might lead in practice to a difficulty to electronically contract would have to be reviewed and properly modified. The various stages of the contractual process to be considered are: the invitation to trade or the contract offer itself, negotiations, the offer or invitation to enter a contract, the conclusion of the contract, registration, cancellation or amendment of the contract invoicing and archiving of the contract.
In concrete terms, no national provisions restricting the use of electronic media or electronic systems such as intelligent agents, weakening the legal effect of electronic contract or requiring formalities or conditions that can not be met by electronic means would be prohibited and should be adapted.
Some exemptions can be provided for instance for family law, succession contracts of contracts requiring the intervention of a notary or the registration with a public authority.
The problem of the consent to conclude the contract is ruled by a transparency and information system. Indeed, article 10 would impose that the service provider explain that manner in which the contract is formed clearly, unequivocally and prior to the conclusion of the contract. This information shall include:
a, the diffierent stages to follow to conclude the contract
b, whether or not the concluded contract will be archived and will be accessible
c, any avaliable means of correcting handling errors
This information shall not be mandatory between professional parties when otherwise agreed.
It will be a matter for Member states to lay down in their legislation that the different steps to be followed to conclude an electronic contract be set out so as to ensure that parties cab reacg a full and enabling the recipient of the service to identify and correct handing errors. Thus, the proposal does not specify whether automated consent carried out by intelligent agents would be valid, neither the way in which contractual terms or web pages should be designed and presented.
Finally, the Draft Directive determines that moment when the electronic contract shall be deemed to be concluded, i.e., when the recipient of the service receives from the service provider, by electronic means, and acknowledgment of receipt. This latter step (confirmation of receipt) would probably be removed from the proposal in line with the amendments already adopted by the European parliament. This will have the advantage of simplifying this intricate and rather non-practical rule. Oher modificaions are likely to be brought to this article 11, since the controversy has so far been intense on that point. The acknowledgment of receipt is deemed to be received and the confirmation is deemed to have been given when the parties for whom they are destined are able to access them.
This moment of conclusion of the contract is relevant to determine the moment when the contract becomes binding for the parties, the law applicable to the contract and any other modalities of the contract which might be determined by a time criterion. This issue was already crucial in other types of contracts concluded at a distance, for instance by telephone, fax or ordinary mail. The contract was considered to be concluded at diffierent times according to the countries, which some relate to the sending of the acceptance letter, while others focus on the time of the receipt of the acceptance. Once adopted, Ariticle will settle these discrepancies amongst national laws in Europe.
|
