Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2007-2008

摘要

Judges trained in the common law rarely, perhaps never, face novel legal issues. They may see novel facts, such as the fact of contract terms presented electronically, but they can handle these novel factual problems by analogy. There may be some stumbling at first, as the courts learn the new fact settings. But the results soon will tie in with the old law. The law of e-commerce illustrates this nicely. After some early forays into a separate set of legal principles for electronic transactions, it is now clear that common law rules fit them well. An offeree who "signs" an agreement by hitting the "I accept" button is bound to its terms just as much as will someone who signs a paper contract. Repeat and sophisticated players will be more likely bound by more ambiguous forms of assent than will innocent ones. Otherwise applicable concepts such as agency and unconscionability will play their normal roles. The law of e-commerce, in other words, has matured.