Many times… and in many cases, “Electronic Point and Click Contracts” are the equivalent of pencil and paper agreements. The advent of “Cyber Monday” has holiday shoppers rushing to their PCs in anticipation of getting, oh yeah, it’s legal, bargain buying power over the Internet.
The latest phenomenon, launched immediately after “Black Friday”, is supported by merchants, sellers and the media. In the turmoil of today’s economic problems, I see this as another burden on the general consumer. “Diamonds are a girl’s best friend!” TV commercials electronically blast this one with a vengeance. “Friends please…we’re told we won’t get anywhere with the ladies, your partner or a sexual encounter/experience if you don’t buy you a new hidden diamond item for Christmas. Car peddlers use the identical prose with both genders. As I recall, kids used to be the target of holiday gifts, while adults came second. Most kids, at least the ones I knew, had no money to spend on anything…less than all the presents.And for that matter, a lot of the adults didn’t either.
But we are bombarded anyway, from all directions, to buy, buy, buy… with no money to buy anything…
Online purchasing power is the other side of the proverbial marketing device. The “emptor warning” is “click agreements”. This electronic practice is also known as a “shrink wrap deal.” This type of contract agreement refers to the terms expressed within a box in which the goods are packaged. “Shrink wrap” is a term that describes the plastic covering over a package of products, which seals the products inside. What happens is that the party that opens the packaged goods is told that they agree to the terms and keeps whatever is in the box. When a buyer opens a software package, they agree to be bound by the terms of the “limited license agreement.”
Many technologies allow you to sign electronic documents. These include digital signatures. Many states have laws governing electronic signatures. The problem is that state electronic signature(s) laws are not uniform. The National Conference of Commissioners on Uniform State Laws and the American Law Institute enacted the Uniform Electronics Act (UETA) in 1999. This law has been adopted, in part, by more than forty states. A buyer’s failure to object to the terms contained in a shrink-wrapped software package may constitute acceptance of the terms – “it’s yours…you open it, you keep it” – by conduct. This responsibility is compatible and enforceable, according to section 2 of the Uniform Commercial Code (UCC), the law governing sales contracts establishes that any contract for the sale of goods “may be entered into in any manner sufficient to demonstrate (agreement of /for terms offered) agreement, including conduct by both parties that acknowledges the existence of a specific contract.”
Recipients, sellers, merchants, and/or vendors doing business over the Internet can protect themselves against contractual disputes and legal liability by creating offers that clearly spell out the terms that will govern their transactions. If offers are accepted, important terms should always (or not) be visible and easy for online buyers to see.
In virtually all areas of law, the use of the Internet to conduct business has raised new legal questions or, more often, new variations on old questions. With respect to jurisdictions, this is certainly true and is quoted in The Fundamentals of Business Law, written by Roger Leroy Miller and Gaylord A. Jentz. “The court is reaching some consensus regarding trade cases before the courts that don’t really fit into the categories and rules that are developing in case law.” This item is the commerce clause in and of the Interstate Commerce Regulations, “Pro Tempore” (for the time being).
An “Electronic Contract” is a contract that is formed electronically. “E-Money” means prepaid funds registered to a computer or a card (such as a smart card or a stored value card – a gift card). A “Destination Contract” is a contract for the sale of goods in which the seller is obligated or authorized to ship the goods by means of a carrier and deliver them to a specified destination. The seller assumes responsibility for any loss or damage to the goods until they are delivered to the destination specified in the contract, under the auspices of the Commercial Law in the online world of web contracts and jurisdiction.
If a party (one or more persons or entities) encounters contractual difficulties or disputes, there are legal steps available to initiate a challenge. Anyone who is a party to a lawsuit has the opportunity to argue the case in a trial court and then in an appellate court, if they lose (to at least one level of appellate court), as provided in the statutes of commercial law. . Also, a statement alleging the facts necessary for the court to take jurisdiction: a brief summary of the facts necessary to show that the plaintiff is entitled to relief, and a statement of the relief sought by the plaintiff. In most cases, the defendant or defense attorney will file an “Expost Facto” motion (a statute of limitations or a motion to expunge). But the complaint and/or argument remains – “Resipsa Loquitur” (the facts speak for themselves).
Together, the Complaint and Answer (and Counter-Claim and Reply), together, are called pleadings. The briefs inform each party of the other party’s claims and specify the disputed issues or issues involved in the case.
So when you rush to the PC to order that new stereo, TV, camera, cell phone, kindle, Mitsubishi SUV, laptop or garter belt… remember: “Buyer Beware!”
You could end up in court, and still penniless.
Until next time.
