"Point and Click - the Electronic Contract"

Gregory V. Boulware

Many times...and in many instances, "Point and Click E-Contracts" are the equivalent of pen and paper agreements. The advent of "Cyber Monday" has holiday shoppers running to their PC's with the anticipation of obtaining - oh yeah, it's legal - bargain basement purchase power via the Internet.

The latest phenomenon, launched on the heels of "Black Friday," is concurred and supported by merchants, vendors, and the mass media. In the turmoil of today's economic woes, I see this as another burden on the consumer at large. "Diamonds are a girl's best friend!" Television commercials electronically blast this one with a vengeance. "Fella's, please...they're telling us that we will not score with the ladies, your significant other, or a sexual encounter/experience if you don't buy her a new diamond latent item for Christmas. The car peddlers use the identical prose with both genders. As I recall, the children used to be the target of Christmas Holiday gift giving while the adults came second. Most children, at least the ones I knew, didn't have any money to spend on anything...least of all presents. And for that matter, many of the adults didn't either.

But we are bombarded anyway - from every direction - to buy, buy, and buy...with no money to buy anything...

Online purchasing power is the other side of the proverbial marketing device. The "caveat emptor" is "click-on-agreements." This electronic practice is also known as a "shrink-wrap agreement." This type of contract agreement refers to terms as expressed inside a box in which the goods are packaged. "Shrink-wrap" is a term that describes the plastic cover over a products package, which seals the goods inside. What happens is the party who opens the packaged goods is told that they agree to the terms by keeping whatever is in the box. When a purchaser opens a software package, it is agreeable to abide by the terms of the "limited license agreement."

Numerous technologies allow electronic documents to be signed. These include digital signatures. Many states have laws governing electronic signatures. The problem is that the State Electronic Signature(s) laws are not uniform. The National Conference of Commissioners on Uniform State Laws and the American Law Institute promulgated the Uniform Electronics Act (UETA) in 1999. This act has been adopted, in part, by more than forty states. A buyer's failure to object to terms contained within a shrink-wrapped software package may constitute an acceptance of the terms - "it's yours...you opened it, you keep it" - by conduct. This responsibility is supported and enforceable, according to section-2 of the Uniform Commercial Code (UCC), the law governing sales contracts provides that any contract for the sale of goods "may be made in any manner sufficient to show (agreement of/to terms offered) agreement, including conduct by both parties which recognizes the existence of a specified contract."

Offerees, vendors, merchants, and/or sellers who do business via the Internet can protect themselves against contract disputes and legal liability by creating offers that spell out clearly the terms that will govern their transactions. Should offers be accepted, important terms should always (or otherwise) be conspicuous and easily viewed by online buyers.

In virtually every area of law, the use of the Internet to conduct business activities had raised new legal questions - or, more often, new variations on old questions. With respect to jurisdictions, this is certainly true, and cited in The Fundamentals of Business Law, authored by Roger Leroy Miller and Gaylord A. Jentz. "The bench is coming to some consensus regarding commerce cases before the courts that do not really fit into the categories and rules being developed by case law." This point is the commerce clause in and of Interstate Commerce Regulations, "Pro Tempore" (for the time being).

An "E-Contract" is a contract that is formed electronically. "E-Money" is prepaid funds recorded on a computer or a card (such as a smart card or a stored-value card - a gift card). A "Destination Contract" is a contract for the sale of goods in which the seller is required or authorized to ship the goods by carrier and deliver them at a particular destination. The seller assumes liability for any losses of damage to the goods until they are tendered at the destination specified in the contract - under the auspices of Business Law in the Online World of Web Contracts and Jurisdiction.

Should a party (one or more persons or entity) encounter contract difficulties or disputes, there are legal steps available to launch a challenge. Any person who is a party to a lawsuit has the opportunity to plead the case before a trial court and then an appellant court, if she or he loses (before at least one level of appellate court), as cited in the statutes of business law. Also, a statement alleging the facts necessary for the court to take jurisdiction - a brief summary of the facts necessary to show that the plaintiff is entitled to a remedy, and a statement of the remedy the plaintiff is seeking. In most cases, the defendant or the attorney for the defense will file a motion of "Expost Facto" (a statute of limitations or motion to erase). But the complaint and/or argument remains - "Resipsa Loquitur" (the facts speak for themselves).

All - in - all, the complaint and answer (and the counter claim and reply), taken together are called the pleadings. The pleadings inform each party of the other's claims and specify the issues or disputed questions involved in the case.

So when you go running to the PC to order that new stereo, television, camera, cell-phone, kindle, Mitsubishi SUV, lap top, or garter belt...remember - "Let the buyer beware!"

You might end up in court - and still with No Money.

Til Next Time...

Acknowledgement(s):
"The Fundamentals of Business Law," Roger Leroy Miller and Gaylord A. Jentz.
Business Law - Management Studies, Community College of Philadelphia,
Berean Institute College of Business and Computer Sciences
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