On line international contracts general terms(2)

4th INTERNATIONAL WEEK:Internet Communication Management Academic Courses7-12 April, 2014, University of Economics, Katowice, Poland

Gloria Esteban de la Rosa

Chair Professor of Private internacional Law

University of Jaén (Spain)

Online international contracts: General terms and conditions

E-Commerce Directive

The question surrounding the formation of a contract has not been resolved by the Directive

Nor the question if this is a Passive or Avtice Web-Site

Art. 1, 4º E-Commerce Directive

This Directive does not establish additional rules on Private International Law nor does it deal with the jurisdiction of Courts

Questions to be solved

First Question: Absent or Present Parties? Second Question: mode os telematic

procurement?- Pressing the icon on the computer screen- Sending e-mail?

Answer: The answer to the

question on whether the electronic contract has been executed may differ in response to the mode of telematic procurement …

…To be taken under diverse consideration in each legislative system (between present or absent), in addition to the various legal responses issued for each regulation.

In the case of Spain

Transposition by the Law on Information Society Services and Electronic Commerce (34/2002, 11th

July)

Absent Parties Solution of

understanding a contract to be concluded from the moment in which the recipient or consumer of an online offer manifests their conformity

Private International Law Regulation 593/2008 on the Law

applicable to contractual obligations (Rome I) This Regulation does not

necessarilly solve the issue of the moment from which it can be considered that there is a contract in the case of contracts concludes by electronic means

Solutions given by the DEC

The exact time of birth of the electronic contract still needs to be determined under the rules of each legal system

Lack of regulation Directive doesn’t vary the criteria used in

their respective legal systems

Directive doesn’t determine the moment a contract is formulated when made by electronic means

Why??

Difficulties that this ascertainement implies, given the diversity of solutions present in the Member States

Art. 11 of DEC

Does not specify the time and and place of completion of an electronic contract

But, it obliges the service provider to acknowledge the Receipt of the recipient’s order without undue delay

Consequently

A contract is not valid if the final confirmation called for art. 11, 1, a) of ECD does not exist

Receipt

The mere fact of the document being deposited in the recipient’s email in-box signifies Receipt

E-Commerce Directive:

Model of electronic contract in three phases

First: is that of an entrepreneur offering through electronic means (e.g., Virtual Store) the sale of goods or offer of services (contractual offer)

Second Phase The second is that of a consumer (or other

entrepreneur) who places an order throught electronic means (acceptance of offer)

Third Phase

Third Phase is that where the first entrepreneur must send Acknowledgement of receipt of the acceptance sent by tge consumer (or second entrepreneur)

But

There is no obligation to include these three phases in electronic contracts between Member States

In fact, when dealing with contracts that are not celebrated between consumers, and if all parties are in express agreement, the ACK of Receipt can be omitted

General Terms and Conditions On line Contracts

Express a rationalisation phenomemon og the contract in economic terms:

- Reduction of costs in the negotiation- Speed in the provision of services

Online International Contracts are carried out under the General Terms and Conditions

Virtual Store

By clicking on the corresponding website icon, clients expresses, in principle, acceptance

Problems of irreflexive contracting

Specific horizontal projection regulations, for warning consumers and clients of the existence of unfair terms of the on line contract sep-up for Virtual Store

This regulation act againts abusive conditions

Directive 93/13/CEE

On unfair terms in consumer contracts

Directive 93/13/CEE Unfair Term. A contractual term which

has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer

2 Different Questions

Control of the contract’s content (Abusive Terms)

Incorporation (of General Terms and

Conditions) to the contract

Good faith

General Principle in Contract Law

Control of the contract content according to the existence of a significant imbalance in relation with the bargaining power of parties

Control of Abusive Terms and Conditions

According to Spanish Law: Law 7/1998 is applicable to contracts:

- That are subject to Spanish Law, or

- When the adherent has issued its business declaration in the Spanish territory

Choice of Law Clause

Incorporation of General Terms and Conditions

When does it take place?? According to the legal system applicable to the General Terms and Conditions

Which one? Choice of Law Clause

I.E. Under the spanish regulation “in case of

telephone or electronic contracting, it is necessary to state (…) acceptance of each and every provision of the contract, wihout the need for the conventional signature. In this case, the consumer will be sent written justification of the recently made contract immediately, where the terms and conditions will be stated therein” (art. 5, 4º)

To sum up: First step: once the Client’s acceptance to

the general terms and conditions of the contract formalised through an Online Store has taken place, one must verify if they have all been incorporated, pursuant to the legal system governing the said terms and conditions

Subsequently: It must be determined if the international

online contract has born according to the applicable regulations thereto, and specifically, the criteria set by said legal system with respect to distance contracts, in addition to the requirements for its formalization

Do you remember?

Present Parties?

Absent Parties?

Usual rules

Special rules for Distance Contracts

Choice of Law Clause

The interpretation and performance of this contract are governed by Spanish law (i.e.)

Documents for preparing the Activity

G. Esteban & E. Gómez, Offer and Acceptance in active and passive Websites (Draft)

E. Gómez, International Electronic contracting: Offer and Acceptance, European Scientific Journal, vol. 8, nº 28

E. Gómez, Regulation of Electronic Contracts in the European Community, European International Journal of Science and Technology, 2013, vol. 2, nº 8

E. Gómez, The formation of Electronic Contract: EU Regulation, ICT Law, 2013

G. Esteban, Internationalization of Spanish Olive Oil Sector through the use of a Virtual Store, International Journal of Business Management, 2014

Look for answers to these Questions:

What says the E-Commerce Directive about the moment of birth of the electronic contract?

Which is the legal system that decide if the content of the web-site is an offer?

When could we consider the acceptance in cases of international electronic contracts in according to the European Law?

What is the meaing of General Terms and Conditions of Contracts?

How it is decided its incorporation to the international contract?