Electronic Contracts

Whilst the Internet does not require a direct physical link between the users, it does allow the user to be notified if a message is successfully sent and/or received by another machine. But, whilst it is imperative for the user to re-send their message where it has not been successfully sent or received, in keeping with the decision in Entores v. Miles Far East Corporation [1955] 2 QB 327, intention to formulate e-contracts effectively is still open to debate, illustrated by Pretty Pictures Sarl v. Quixote Films Ltd (2003) All ER (D) 303. Such a view has arisen because the contract in such cases comes into existence where acceptance is received, supported by Brinkibon Ltd. v. Stahag Stahl & Stahl warenhandelgesellschaftmbh (1982) 1 All ER 293. Therefore, generally, for revocation of acceptance of an offer to be effective in this area, revocation would take effect when it is communicated if they were considered to be revoking the ‘offer’ to take the goods, illustrated by Byrne v. Van Tienhoven (1880) 5 CPD 349. But this is not the case with ‘electronic contracts’ formed under the ‘postal rule’, so anyone contracting on this basis would need to be advised the acceptance of an offer is complete as soon as the acceptance is ‘posted’.

However, there is some controversy in this area because such a revocation would usually in no way have prejudiced the offeror if they were to receive the revocation before the acceptance and the only direct authority is that of the troubling decision in Countess of Dunmore v. Alexander (1830) 9 S. 190 - so the better view is that such acceptance is generally irrevocable, in keeping with Wenkheim v. Arndt (1873) 1 JR 73 (NZ). But statutory provisions have provided for a ‘cooling off’ period since the Consumer Credit Act 1974 with one of the most recent examples found in the Consumer Protection (Distance Selling) Regulations 2000. Therefore, on the basis of the Consumer Protection (Distance Selling) Regulations 2000, it is possible to cancel an order because the effective date of cancellation is when the cancellation is sent, but this is usually after acceptance has been received, making it difficult to resolve on the basis of how their contract was formed.

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