Electronic Contracts and Information Society Services under the E-Commerce Directive

摘要

Article's 11 only muscle is brought about by requiring the service provider to acknowledge the receipt of the recipient's order without undue delay and by electronic means. (This duty can be waived if none of the parties is acting as a consumer.) There was no attempt to elucidate the seller's liability arising out of the failure to acknowledge receipt without undue delay. English law, for example, imposes a tortious liability on the business for failure to send an acknowledgment in due time. Section 13 of the Regulations stipulates that the "duties imposed by regulations 6, 7, 8, 9(1) and ll(l)(a) shall be enforceable, at the suit of any recipient of a service, by an action against the service provider for damages for breach of statutory duty."rnThis indecisiveness in the E-Commerce Directive has lead to inconsistency among member states. For example,under Polish law, an offer expressed in electronic form "is binding only if the second party confirms its receipt without undue delay." Thus under Polish law the duty to acknowledge could potentially play an important role in the formation of agreements. In England, it has no such role. All it does is to impose a civil wrong on businesses failing to acknowledge receipt of the recipient's order without undue delay. Furthermore, it is unclear how courts would assess the liability of businesses held in breach of the duty to acknowledge.