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Chapter

Cover Information Technology Law

16. Electronic contracts  

This chapter examines contracts in electronic commerce and their implications for the traditional contract law and the law relating to payment and payment methods. It first looks at the rules for the formation of informal electronic contracts and the regulation of offer and acceptance, focusing on Articles 9–11 of the European Union’s Electronic Commerce Directive. The chapter then considers the question of when acceptance is effectively communicated to the offeror, the terms of the contract, and their enforcement as well as evaluating formal contracts and discussing their formation and terms. A focus for this chapter is the evolving laws on electronic signatures, the role of qualified trust service providers and how electronic signatures are formalized. The chapter concludes with a discussion of the evolving area of smart contracts: their design, formation and what the role of the law is in relation to these self-enforcing agreements through an analysis of the Law Commission Report Smart Legal Contracts.

Chapter

Cover Information Technology Law

16. Electronic contracts  

This chapter examines contracts in electronic commerce and their implications for the traditional contract law and the law relating to payment and payment methods. It first looks at the rules for the formation of informal electronic contracts and the regulation of offer and acceptance, focusing on Articles 9–11 of the European Union’s Electronic Commerce Directive. The chapter then considers the question of when acceptance is effectively communicated to the offeror, the terms of the contract, and their enforcement as well as evaluating formal contracts and discussing their formation and terms. A focus for this chapter is the evolving laws on electronic signatures, the role of qualified trust service providers and how electronic signatures are formalized. The chapter concludes with a discussion of the evolving area of smart contracts: their design, formation, and what the role of the law is in relation to these self-enforcing agreements.

Chapter

Cover Information Technology Law

24. Contractual issues  

Any product can have defects – or at least fail to meet the expectations of a purchaser. A range of statutory provisions confer rights on a party acquiring goods if these are not of satisfactory quality. Software and what is referred to as “digital content” is covered by these provisions although their application gives rise to a number of difficulties. Unlike most physical products where defects will be found in one or a small number of the items, every digital work will be an exact copy of the original. If one product is considered faulty, the same fate may await all of the others. In most instances software is licenced rather than sold. It is commonplace for a licence to seek to restrict or exclude liabilities that might otherwise arise. The question may then be whether the terms of the licence are enforceable. In many instances they may be brought to the customer’s attention after the contract for supply has been concluded. The use of “click-wrap” licences where a user has to click on a box indication acceptance of contractual terms prior to using the software may assist but questions of time will again be very significant.