Contracts and the Internet in the United States – The Chronicle “Rights in the United States” by David S. Willig

E-commerce on the internet has become almost everyone’s daily life, and it was already the case before the pandemic. Placing an order from a mobile phone, paid by credit card and delivered to your home, nothing is easier.

by David S. Willig, lawyer in Paris and Miami – Notary

So, if there was ever any doubt about the possibility of forming a contract over the internet, the proof is that each order or purchase made on the mobile phone constitutes a contract in some way.

All this goes unnoticed because most often the package arrives without problems. The concept of electronic signature and “contract concluded by electronic means” is integrated into the legislation, both in the USA and in France, or elsewhere, of course.

A US Federal Court of Appeal observed that this new way of doing business on the Internet presented new situations before the courts, but that it did not change the basic principles of the law of contractual obligations.

Before the courts, the most frequent question is not whether a contract has been concluded, but what kind of contract is, and under what conditions.

In order to settle this type of dispute, case law has evolved towards the recognition of at least two types of “virtual” contracts with two new English words to describe them.

These are the “browsewrap” and “clickwrap” contracts, roughly translated as “pack navigation” (for the navigation purchase contract) and “pack click” (for the click purchase contract).

The difference depends on how the buyer is asked to signal their consent. The term “browsewrap” describes the situation of an offer that provides a link to general conditions of sale. The “clickwrap” goes a little further: upon receipt of the user’s final consent agreement, it offers him an electronic survey form which obliges the buyer to click in order to indicate that he has read the general conditions of the sale.

Typically, when a dispute ensues concerning an internet sale, it is not necessarily the purchase of the object or the service which is directly questioned, otherwise an incident with the sale which must be decided before to get to the bottom of the case.

Often, the clause generating the dispute relates to the jurisdiction competent to settle a dispute between the parties. Moreover, analyzing the case law, most often the dispute is centered on the viability of an arbitration clause, i.e. a clause stipulating that a possible dispute will be subject to arbitration, resorting to an arbitrator and, if the arbitration decision must be confirmed by a possible judgment, whereas it must be confirmed only before a judicial judge.

This kind of arbitration clause has become controversial because they are increasingly applied to consumers and have the result of forcing a dissatisfied buyer to choose to pursue his right according to a costly, accelerated procedure, and sometimes far from his home… or from to drop.

It is a somewhat complex subject and, if you have any doubts, it is always better to consult a legal professional, so Me. David S. WILLIG remains at the disposal of buyers to analyze a contract, or to draft the conditions. general sales terms of sellers. Call Mr. David at 305-860-1881 at his Miami office.

David S. Willig

2837 SW 3rd Ave, Miami, FL 33129 –

Tel: +1 (305) 860-1881

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