Manner, Method, Receipt or Dispatch: The Use of Electronic Media is Nothing New to the Law
Loyola Law Review, Vol. 52, pp. 101-137, 2006
Posted: 14 Mar 2012
Date Written: June 10, 2006
In electronic commerce, the most appropriate measure of the time of acceptance of an offer is the receipt of the communication, as electronic communications are virtually instantaneous and allow for quick and efficient error reporting – both factors which militate in favor of placing the risk of miscommunication upon the offeree. However, the common law places the risk of miscommunication upon the offeror because the prevailing rule presumes that parties to a contract use “snail mail” as the primary means of communication. Moreover, the common law rules are in conflict with the contracting rules of many civil law countries and with current international law. The common law must be updated to reflect current technological trends and to better comport with current international law for the purposes of facilitating international contracting and promoting commercial certainty in today’s global business community. In an attempt to provide insight into how the common law rule of the timing of acceptance should be revised, this paper will (1) examine the origins of the rule governing the timing of acceptance and the varying responses of the international contracting world; (2) review the principles behind electronic contracting; and (3) discuss why the distinctions that exist in the timing of acceptance is no longer as relevant in today’s wired world.
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