E-Commerce-Directive of June 2000 Conclusion of Contract (Consumer Commerce)

Transcription

1 E-Commerce-Directive of June 2000 Conclusion of Contract (Consumer Commerce) 1. Offer and Acceptance Supplier (economic offeror ): goods and services displayed on websites are usually to be taken as an invitation to place an offer Buyer (customer) : response (in whatever form) to such economic offer is considered to be a legal offer open for acceptance by the supplier Supplier: acceptance of legal offer submitted by customer concludes the contract 2. Open issues Normal cases and exceptions Confirmation of supplier - Implied by delivery? - Time frame? Digital Signature Evidence 3. National adoption: member states must ensure that contracts concluded electronically are valid competence of EU?

2 Information Duties 1. Information related to the conclusion of the contract (1) Different stages to follow in concluding the contract (2) Whether or not the contract will be filed anywhere (3) Application of the expedience for correcting handling errors (4) Ensuring that the customer can give his/her full and informed consent 2. General information (1) Name and address of the supplier (2) Online particularities (3) Particulars of the supplied goods and/or services (4) Trade register details (5) VAT details

3 Responsibilities of Different Types of Providers (Art of E-Commerce-Directive) 1. Carrying/access services In principle no responsibility/liability If provider does not choose the author of the information or its transmission 2. System caching Conditions that provider does not become responsible/liable No change of the information, application of normal industry standards for access to information and for making it available, no obstacles ( clickcount ) and immediate take down in case of awareness of illegal contents 3. Hosting Conditions that the provider does not become responsible/liable No knowledge of illegal contents and immediate take down in case of awareness of illegal contents No permanent duty to supervise website

4 General Business Terms 1. Principles of directive of April 1993 (1) Clear consent to General Business Terms (2) Invalidity of surprising provisions (3) Invalidity of materially unfair or inequitable provisions 2. Application in E-Commerce (1) General Business Terms must be clearly marked on the website (2) Customer should be required to scroll down through the General Business Terms (3) Customer should be required to click on a button or (better still) type in some form of written confirmation that the General Business Terms have been read and fully understood Caution: basic difference to legal situation in the United States ( shrinkwrap : ProCD, Inc. v. Zeidenberg, 7 th Cir. 1996)

5 Distance Selling-Directive (1997) 1. Present scope of application (1) Goods Physical goods not sold in presence of contract parties in consumer matters Various exceptions: daily goods, newspapers etc. (2) Services Services rendered by entrepreneurs, agents etc. in distance business Excluded: financial services 2. Envisaged amendment of directive Financial Services: Since several months the amendment of the directive including financial services is in discussion based on a proposal of the Commission Problems occur in connection with the definition of the scope of financial services and with the exceptions (how to withdraw from a stock exchange order within 7 days?)

6 3. Information duties (1) Contents Identity of the supplier Main characteristics of the goods or services Price of the goods or services including all taxes Delivery costs where appropriate Arrangements for payment, delivery or performance Existence of a right of withdrawal Costs of using the means of distance communication Period for which the offer or the price remains valid Eventually the minimum duration of the contract (2) Formalities Information must be clear Customer must receive written confirmation of information