Notice and Assent Through Technological Change: The Enduring Relevance of the Work of the ABA Joint Working Group on Electronic Contracting Practices

Abstract

This article, prepared for the 75th anniversary volume of The Business Lawyer, reflects on the efforts of the ABA Business Law Section’s Joint Working Group on Electronic Contracting Practices. The Working Group produced two articles in The Business Lawyer in 2001 and 2003 that were designed to give guidance to companies presenting standard-form contract terms electronically. We review the guidance and reflect upon the insightfulness of these two articles on the subject of electronic contracting. Although court decisions were not always consistent with the Working Group’s recommendations, recent cases assess the quality of notice more carefully and critically, reflecting a trend aligned with the guidance of the Working Group, which emphasized the effectiveness, and not just the existence, of notice.

Keywords: contracts, electronic contracts, electronic commerce, cyberspace law

JEL Classification: K00, K12,K19, K39