From M/Cyclopedia of New Media
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Annotated Bibliography
Electronic Commerce - Forming Contracts Over the Internet
INTRODUCTION TO ELECTRONIC CONTRACTS
Online Contracts [Online] (1999). Available: http://www.oznetlaw.net/facts.asp?action=content&categoryid=232 [Accessed 7 Aug. 2004].
- This report was supplied by Oz NetLaw which is a community based legal practice that provides free legal information and advice about law related internet and e-commerce. This site is specifically relevant to my topic since it deals only with issues arising in contract law in the digital environment. Furthermore, it communicates the principles of contracts in relation to the internet in layman’s terms which is useful since I will be required to do the same for my assignment. The site attempts to weight up the benefits of making written contracts over electronic ones and provides simple precautionary advice to anybody forming contracts electronically. It also deals with consumer protection and discusses when electronic contracts are formed and possible implications in this area. It goes into detail for this matter since it is a complex issue and not set in stone.
Sneddon, M. (1998) ‘Report on Framework Legislation For Electronic Commerce Released by Attorney-General’, in Computers & Law, vol. 35, p. 11-12, ISSN 08117225.
- This article reviews the Attorney-General’s report, the aim of which was to settle that paper-based commerce and electronic commerce should be treated equally by the law, and that the law should not discriminate between forms of technology. Although this is a little out of date to assist in examining the current legislative provisions on electronic commerce, it shows how it has developed, which is important to understand in order to be able to foresee how it is going to develop in the future.
DEVELOPMENT IN E-COMMERCE
Beard, D. (2000) ‘International Virtual Contract’, in Australian Business Law Review, vol. 28, p. 206-213, ISSN 10343040.
- “This article seeks to employ the UNCITRAL Draft Model on Electronic Data to explore recent case law and develop an introductory guide to crucial Internet issues in the practice of contract law across national frontiers. This article centers on the concepts of jurisdiction, enforcement and alternative dispute resolution, to map out the direction of future laws and establish which direction improvements in communication technology will carry us� (Beard, 2000: 206).
- This foreword to the article succinctly describes the aim and content of the article, but I would just add that it explores the Internet as a new technology in terms of its new stards and new processes for which it is used, which raises the question of whether the Internet is ever going to fall out of this category of ‘new’.
- N.B. : UNCITRAL stands for the United Nations Commission on International Trade Law
Janssen, P. (2002) Electronic Contracts and Digital Signatures [Online]. Available: http://www.legalmart.com.au/topics/business/it_ecom/info_tips/1e_electronic_contracts_sign.asp [Accessed 7 Aug, 2004].
- This paper discusses how the government is encouraging the use of the internet as a means for forming legally binding transactions. One way in which the Commonwealth government has supported the use of new technologies for commerce was by enacting the Electronic Transactions Act (Cth) 1999. The paper then goes on to discuss this Act, including how it makes electronic contracts legal, and the fact that it recognises electronic signatures. The paper only provides general information, and not advice, and so will help to develop the platform for my research.
Shiu, K. (2004) Developments in international electronic contracts [Online]. Available: http://www.aar.com.au/pubs/cmt/cuecomapr04.htm [Accessed 7 Aug. 2004].
- This paper discusses the new draft convention on international e-commerce contracting. The purpose of the new convention would be to try to make issues of electronic contracts in Australia compatible with those of other countries, so that international contracts over the internet will have less complications. The draft considers the defects of the Vienna Convention on the International Sale of Goods. Besides pointing out the draft convention for furthering my research, the paper notes the particular issues for electronic contracts that the convention covers, as well as the type of contracts that it will apply to, and those it will not.
- Although the convention is only in draft stage and so doesn’t apply to Australian law, it points to how the law in this area is likely to be developed in the near future.
UNCITRAL Working Group on Electronic Commerce [Online]. (2002). Available: http://nationalsecurity.ag.gov.au/agd/seclaw/electronicpaper.html [ Accessed 10 Aug. 2004].
- This site provides and discusses the Draft Convention on Electronic Contracting as it was being developed by the working group. It identifies the aim of the convention as being to ‘eliminate legal obstacles to contract formation by the use of electronic means of communication…and is intended to clarify or adapt the traditional rules on contract formation to accommodate the realities of electronic contracting’(2002). The site discusses why the convention is needed, and how it applies and what it applies to. The convention itself covers all issues related to electronic commerce.
APPLICATION OF TRADITIONAL CONTRACTUAL PRINCIPLES
Argy, P., Martin, N. (2001) ‘The Effective Formation of Contracts by Electronic Means’, in Computers & Law, vol. 46, p. 20-23, ISSN 08117225
- This is a reliable source considering that it is published in an Australian law journal, and both authors specialise in IT law. This article focuses on the challenge to apply the traditional contract law framework to Internet contracts, which are of course a paper-less form. It explores how established contract law principles can apply to the formation of contracts via electronic means, which is in fact the basis question of my research topic. As this article is as current as 2001, it may be used as a principle research tool.
Biegel, S. (2001) Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyperspace, Ch. 5, MIT Press, Massachusetts, ISBN 0262025043.
- Although Chapter Five, ‘The International Regulation Model: Applying Existing Rules and Developing New Legal Frameworks at the Individual Company Level’, addresses these frameworks by focusing on U.S. law as an example of how it may operate, the principles are applicable to Australia, but with some minor variations to account for smaller size of Australia to America and our different system of government. This chapter links with some other of my research materials as it examines whether cyberspace actually needs a new legal framework, or whether existing laws can be applied to the Internet as they may have been applied to earlier technological advancements. This is while recognising that the general consensus around the world, evidenced by legislation aimed specifically aimed at regulating online environments, is that cyberspace is different enough to merit new legal frameworks.
Christensen, S. (2001) Formation of Contracts by Email – Is it just the same the post [Online]. Available: http://www.austlii.edu.au/au/journals/QUTLJJ/2001/3.html [ Accessed 5 Aug. 2004].
- Since the increased use of email as a medium for making contracts, the issue of whether the same legal principles that apply to contracts sent by post, apply to contracts sent by email. This article attempts to explain this issue, and particularly notes how some components of this issue are not yet settled by the law, therefore recognising that the law in Australia has not kept up with the development of new technologies.
- This article is very relevant to my topic, especially since it refers to Australian law, and is useful since it was published in 2001, which is fairly recent. It is also a reliable source as it is a journal supplied by the Australasian Legal Information Institute (AustLII) (http://www.austlii.edu.au).
Gill, C., Harris, B., Coroneos, P., (eds). ‘Fact Sheet 6: Online Contracts’. Available: http://www.iia.net.au/factsheets/intro.pdf [Accessed 7 Aug. 2004].
- This fact sheet, which is a part of the Information Series: E-commerce For Small Business, examines the key elements required to form a valid contract over the internet, which the courts will enforce. It goes through each requirement to form a traditional valid contract such as making an offer and having it accepted, and discusses each in terms of the internet environment.
TIME AND SPACE
Biegel, S. (2001) Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyperspace, Ch. 1, MIT Press, Massachusetts, ISBN 0262025043.
- When contracting by paper, or orally, it is done in an environment that no one actually controls, but which of course is subject to the laws of the Commonwealth and the State. However, when someone contracts via the internet, it is done in a space which is controlled by various groups/organisations, yet the average person unaware or oblivious to exactly what and who controls cyberspace and how it effects them. Chapter One, ‘Controlling the Internet: Is Anyone in Charge?’ argues that the internet is indeed under a significant degree of control. This matter is relevant to all uses of the internet, including forming contracts. This also introduces the term “cyberlaw� which includes cases, statues and consitutional provisions that impact key stake holders in cyberlaw, from the phone and software companies to colleges and universities, and individual users themselves. The role that these stake holders and more play in the internet environment is examined in this chapter.
Dodge, M., Kitchin, R., (2001) Mapping Cyberspace, London and New York: Routledge, ISBN 0415198836
- The introduction in this piece examines the space, or rather the spacelessness, of cyberspace. It presents the view that since spacial theories are disrupted in cyberspace, modern perceptions of space-time relations are challenged. This is because we conceptualise time and space as being linear, that is, having a certain shape and finite quality and time and space seem to be irrelevant or even non-existent in the internet environment. This challenges the process of contract formation over the internet, since the time of contract formation is important in order to determine if the contract is valid, and the place in which it was formed can be important when different jurisdictions are involved.
Willmot, L., Christensen, S., Butler, D. (2001) Contract Law, Oxford University Press: Victoria, ISBN 0195510062.
- This book contains facts on contract law in general, but throughout makes mention of electronic contracts, in relation to electronic communication, and issues of time and place of formation. This book discusses the developments in Australian law to encourage electronic contracts, and which areas are still not settled.
ENFORCEMENT OF ELECTRONIC CONTRACTS
Hudson, C. (2001) Problems in enforcing e-contracts: Will the courts cope with cyber agreements? [Online]. Available: http://www.aibf.com/resource/E-CONTRACTS [Accessed 7 Aug. 2004].
- Although this site provides only a small amount of information as it was in the format of a Power Point presentation and so left many questions blank, the information it does supply is simple and relevant to electronic contracts. Hudson discusses why a paper form of a contract is necessary and notes some precautions for parties entering into an e-contract. He also identifies some problems with the law on e-contracts and brings to light more specific issues for me to research (e.g. When scrolling down a page on the internet or email which is intended to be a contract, is ‘scrolling’ the same as actually reading the contract?).
Milosevic, Z., Josang, A., Dimitrakos, J., Patton, M. A. (2000) ‘Discretionary Enforcement of Electronic Contracts’. Available: http://www.dstc.edu.au/Research/Projects/Elemental/resources/milosevic_enforcement.pdf [Accessed 7 Aug. 2004].
- This paper discusses contract non-compliance in the electronic environment and argues that it is necessary to provide various levels of support to deal with these breaches in order to reach the best outcome for the parties. The title, ‘Discretionary Enforcement of Electronic Contracts’, refers to mechanisms that help to ensure that the behaviour of the parties in performing the contract is in compliance with what is actually required by the contract. This paper examines these mechanisms for electronic contracts, which are grouped under mechanisms for contract establishment, mechanisms for contract execution, and mechanisms to support trust which address uncertainties in the electronic contracting environment.
- This paper delves deep into contract law and perhaps goes beyond the scope of this research assignment, but does provide a more extensive overview of the area.
Kirsty Newman 11:59, 11 Aug 2004 (EST)
Kirsty Newman 18:05, 12 Aug 2004 (EST)
