Contracts- Online Incorporation of Terms Essay

1892 Words Sep 22nd, 2014 8 Pages
One of the main objects of the Electronic Transactions Act (ETA) was to facilitate transactions of an electronic nature . However, the ETA fails to incorporate clear legislation for courts to follow and interpret in relation to the incorporation of terms of these contracts.

With such ambiguity within the ETA , this can create problems for parties entering into a contract of an electronic nature. This problem extends further to the judicial system, with no clear legislative materials to facilitate courts in the interpretation of how terms are to be incorporated into a contract.

Two common methods of contract term incorporation will be discussed further in both an electronic and non-electronic context. These are incorporation of
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Further, it is contended that electronic signatures, as can traditional offline signatures, be affixed to a contract via mechanical means. Christensen, Duncan and Low also share these views.

Questions are then directed as to when a signature occurs (if there indeed was one) in online contracting. One suggestion that seems logical as suggested by Macdonald, (although Macdonald is very much against this idea), is the idea that a signature may occur upon the contracting party clicking a so-called ‘click button’ signature, for example an ‘I Agree’ button.

The ETA provides that for signatures to be effective in an online contracting context, the signing party has consented to the method being used by the other contracting party as appropriate in the context of the contract. Thus, if a website was to provide a click button (such as an ‘I Agree’ button) that was intended to be used as a signature, providing that the website user was to agree to using a click button as an effective signature, the click button will be an effective signature. In addition, as discussed earlier, a signer will affirm consent to be bound by any terms that were incorporated in a contract under L’Estrange and Toll, regardless of whether the terms are read or not.

Incorporation of terms by notice

In the absence of a signature, terms will usually be incorporated into contracts by one party giving the

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