Conclusion of Online Contracts - Research Paper Example

 Conclusion of Online Contracts Introduction Nowadays, more and more people turn to online agreements, sometimes even preferring them to the traditional written ones. The online contracts are mostly governed by the same legal traditional principles as the written contracts. This topic has been chosen due to the growing popularity of the online agreements among the simple users and other interested people. The term paper is focused on revealing the essence of the online agreements. The author believes that such a paper is necessary, because of the ascending number of concluded online agreements. Sometimes, a user is not even aware of the fact that he is binding himself to a contract in the online jungle. The objective of this paper is to reveal and critically analyze the concept of online contracts’ conclusion and their advantages or disadvantages in comparison to the traditional written contracts. The author intends to focus and analyze all the steps that have to be taken in order to conclude an online agreement. These steps will be analyzed in the chapters of the paper in the following order: offer, acceptance, and consideration. The chapters will critically analyze and explain the legal characteristics of these concepts, also focusing on describing the issues that often occur in their performance. A separate sub-chapter will be dedicated to the concept of invitation to treat. The sub-chapter will analyze the concept of the invitation to treat, as well as the difference between an invitation to treat and an offer, although it is sometimes difficult to establish. However, the author will try to analyze it as thoroughly as possible so that most of the differentiating aspects are cleared up. The paper will also analyze the jurisdiction that regulates the conclusion of the online agreements in Canada and other countries. The author will focus both on the national Canadian context, as well as on the international one, pointing out the main differences and similarities and analyzing them. The paper will be finished with the conclusions, where the personal opinion of the author is expressed, as well as some recommendations, which, in the author’s opinion, could improve the statistics. Chapter 1: Offer and invitation to treat 1.1. Offer According to Deeksha Bhana and others, “an offer is an invitation by one party to create obligations with another party, which obligations will become legally binding upon the acceptance by the other party”1. An offer must respect several legal requirements in order to be valid: 1. the offer must be made with animus contrahendi 2. the offer must be complete, certain or at least ascertainable 3. the offer must be communicated to the offeree. In the online community however, things are not so simple. Very often, these requirements are confusing or not observed by the participants, which further leads to serious legal issues. The author will analyze these legal requirements and explain them and the possibility of avoiding confusion in this moment. This chapter will also analyze the concept of unilateral contract and the possibility of revocation of an offer. 1.2. Invitation to treat An invitation to treat represents “an expression of willingness to negotiate. A person making an invitation to treat does not intend to be bound as soon as it is accepted by the person to whom the statement is addressed.”2 Therefore, the main difference between an invitation to treat and an offer consists in their binding power. The paper will describe all the differences between these two concepts and analyze some possible situations that might occur due to the ambiguity of these two notions. The main question that the author intends to answer in this part of the paper is: Is it an offer or an invitation to treat? In the answer to this question, the author will address to the concept of online advertisement and other important notions. This chapter will also analyze the concept of unilateral contracts and the possibility of revocation of an offer. Chapter 2: Acceptance “Acceptance is a final and unqualified expression of assent to the terms of an offer.”3 In this chapter, the author will analyze the concept of acceptance and its application in the online world. The test of acceptance and the rules of acceptance will be thoroughly analyzed under the national and international legal provisions, as well as considering the existing law cases. Robophone Facilities Ltd v. Blank [1966], Carlill v. Carbolic Smoke Ball Co. [1892] and Rust v. Abbey Life Assurance Co. Ltd [1979] are just some of the important cases that will be analyzed in this chapter, due to their importance to the establishment of the rules of acceptance. Moreover, the chapter will also analyze the legal methods of the acceptance: written, verbal or tacit and the legal issues that they involve, considering the digital community. Chapter 3: Consideration This notion refers to the legal concept of value connected to the contract. In common law, it is required that all the parties of a contract offer some consideration so that a contract can be considered binding. The author intends to analyze this concept under the circumstances of the online community and the online jurisdiction. Chapter 4: Legislation and law cases In this chapter, the author will analyze the national and international acts that govern the online contracts. Some of them are: United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce ("U.N. Model Law"); Uniform Electronic Commence Act (UECA); Electronic Signatures in Global and National Commerce Act; and the Personal Information Protection and Electronic Documents Act. The author will give a brief description of each of these acts, pointing out their strong and weak points. Conclusion: The digital world is extending more and more each day and is taking over the traditional means of contracting. Therefore, the author strongly believes that it is imperative to understand all the details of the conclusion of the online contracts as we often find ourselves bound by agreements we are not even aware of. Unlike the traditional written contracts, where we actually see the text of the clauses and hold it in our hands, the online contracts’ text is sometimes even hidden from the eyes of the consumers, in miscellaneous purposes. The author hopes that by this paper and critical analysis of the conclusion of the online contracts at least some of the legal issues will become clearer and avoiding the online legal traps will become much easier for the average consumers. References: 1. Deeksha Bhana, Elsje Bonthuys, Minette Nortje. (2009) Student's guide to the law of contract. Second edition. Cape Town: JUTA law. 2. Andrew Burrows. (2007) Casebook on Contract. UK: Hart Publishing 3. G.H. Treitel. (1999) The Law of Contract, 10th edition. London: Sweet and Maxwell Bibliography: 4. Deeksha Bhana, Elsje Bonthuys, Minette Nortje. (2009) Student's guide to the law of contract. Second edition. Cape Town: JUTA law. 5. Andrew Burrows. (2007) Casebook on Contract. UK: Hart Publishing 6. G.H. Treitel. (1999) The Law of Contract, 10th edition. London: Sweet and Maxwell 7. United Nations Commission on International Trade Law (UNCITRAL) 8. Model Law on Electronic Commerce ("U.N. Model Law") 9. Uniform Electronic Commence Act (UECA) 10. Electronic Signatures in Global and National Commerce Act; 11. Personal Information Protection and Electronic Documents Act. 12. Robophone Facilities Ltd v. Blank [1966] 13. Carlill v. Carbolic Smoke Ball Co. [1892] 14. Rust v. Abbey Life Assurance Co. Ltd [1979] 15. Hubbert v. Dell [2005] 16. Internet Sales Harmonisation Template 17. Geist, M. (2002). Internet Law in Canada, 3rd ed. Captus Press 18. Scassa & Deturbide (2004) Electronic Commerce and Internet Law in Canada. (Toronto: CCH Read More