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4th INTERNATIONAL WEEK: Internet Communication Management Academic Courses, 7-12 April 2014, University of Economics Katowice (Poland). Second Part
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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?