David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
This article takes a critical look at the developing body of cases that address the threshold issue in Internet contracting: the issue of assent. While the Uniform Electronic Transactions Act and the federal Electronic Signatures in Global and National Commerce Act remove barriers to Internet contracting by providing that a contract shall not be denied legal effect solely because it is in electronic form, the statutes leave the substantive law of contracts intact. Therefore, it is up to the courts to define the extent to which the rules of assent should be modified to adapt to electronic transactions. While the Internet is new, the challenges presented by Internet contracts are not. Traditional contract rules, based on the paradigm of two individuals meeting face-to-face to negotiate written terms, have been modified over the years to accommodate diverse methods of communicating contract terms. These modifications have been fashioned to account for the different signals sent to offerees by new methods of contracting. Today's courts, however, virtually ignore the fact that the common law of contracts has developed rules that account for the different signals sent by contract terms that are delivered in novel ways. This article argues that courts must consider the cautionary function that the paper contract form has traditionally served and account for the different signals sent by electronic contracts. To support this argument, the article reviews the electronic contracting case law and compares it to older cases addressing the issue of assent when contract terms are delivered by novel methods. The paper then discusses the factual differences between paper and electronic contracts, drawing on computer science and marketing scholarship examining the ways that individuals perceive electronic communications. The paper concludes by suggesting approaches to the assent issue that take these different perceptions into account.
|Keywords||No keywords specified (fix it)|
No categories specified
(categorize this paper)
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Ruben Berrios (2006). Government Contracts and Contractor Behavior. Journal of Business Ethics 63 (2):119 - 130.
Giovanni Sartor (2009). Cognitive Automata and the Law: Electronic Contracting and the Intentionality of Software Agents. [REVIEW] Artificial Intelligence and Law 17 (4):253-290.
Steffen Wettig & Eberhard Zehender (2004). A Legal Analysis of Human and Electronic Agents. Artificial Intelligence and Law 12 (1-2):111-135.
Henrique Lopes Cardoso & Eugénio Oliveira (2008). Electronic Institutions for B2b: Dynamic Normative Environments. [REVIEW] Artificial Intelligence and Law 16 (1):107 - 128.
Emily M. Weitzenböck (2004). Good Faith and Fair Dealing in Contracts Formed and Performed by Electronic Agents. Artificial Intelligence and Law 12 (1-2):83-110.
James R. Maxeiner, Internet Contracting and Standard Terms in the Global Electronic Age: Perspectives for Japan.
Luca Anderlini & Leonardo Felli (1999). Incomplete Contracts and Complexity Costs. Theory and Decision 46 (1):23-50.
Brian Bix (2010). Contracts. In Franklin G. Miller & Alan Wertheimer (eds.), The Ethics of Consent: Theory and Practice. Oxford University Press.
Darren Charters (2002). Electronic Monitoring and Privacy Issues in Business-Marketing: The Ethics of the Doubleclick Experience. [REVIEW] Journal of Business Ethics 35 (4):243 - 254.
Francisco Andrade, Paulo Novais, José Machado & José Neves (2007). Contracting Agents: Legal Personality and Representation. [REVIEW] Artificial Intelligence and Law 15 (4):357-373.
Added to index2009-01-28
Total downloads2 ( #348,296 of 1,100,978 )
Recent downloads (6 months)1 ( #290,065 of 1,100,978 )
How can I increase my downloads?