English Contract Law - Case Study Example

The Application of Traditional Rules of Offer and Acceptance in English Contract Law in the Context of Standard Term Contracts and Electronic Communications Introduction Offer and acceptance rules analysis are traditionally applied in contract law determine the existence of an agreement between two parties. The agreement between the parties is comprised of an offer indicated by one person (“offeror”) to another (“offeree”). In this case, the offeror should be willing to engage in the contract on specific terms without negotiation. The existence of the contract starts once the offeree communicates the acceptance of the offer to the offeror. The formula of offer and acceptance was formulated in the nineteenth century and it is used to identify a formation moment when the parties agree on the same condition (Alpa et al, 54). Offer is referred to as an expression of desire to contract on specific terms which are made intentionally to become a binding after the person to whom it was addressed accepts it. It can also be defined as the statement of terms that the offeror is ready to be bound with. Acceptance requires that both parties should have engaged in conduct that manifests their assent in subjective perspective. The traditional approach that is applied in contract law is involves analyzing contract formation in terms of one party doing an offer and the other one accepting the offer. It has been argued by some scholars that not all contracts are analyzed in terms of offer and acceptance. They instead argue that one should focus on correspondence and the parties conduct as well as the parties’ terms of agreement Contracts which can not be analyzed in this perspective of offer and acceptance are said to be exceptional (Hedley, 230). Some critics have argued that the principles of offer and acceptance have a marginal relevance in business conduction. Different rules that are related to contract formation appear inform technical and schematic contract law. Practically, the law can adopt a fair and flexible pragmatic approach. Although most contracts are made using the offer and acceptance process, some agreements cannot be explained fully using the traditional approach. There are cases that may proof hard to reconcile using the traditional approach and they include contract not resulting from parties’ agreement. The court may imply a contract in the bases of public policy or on the bases of expediency which makes it difficult to analyze. Standard Term Context Generally contractual terms are settled using two methods that is by express negotiation and standard terms. English law when contrasted with other legal systems uses the analysis traditional offer and acceptance in cases of standard terms (Johnson, 342). In this context, there is the use of two types of rules in adjudication of the battle of forms. Battle of forms refers to situation where and placement of an order expresses standard terms of the supplier accepted on standard terms of the buyer. The first rule is the “last shot” rule which argues that incase of exchanged conflicting communications each is handled as a counter offer (Alpa et al, 399). Thus in this case the consequences of the contract are in form of final document of a series. The second rule is “knock out” rule which provides effect to the terms common to conditions of both parties. It does not depend on the matching acceptance of the offer and the acceptance. The first method of rule results to an all or no outcome at all. If there is an objective matching of offer and acceptance, the contract thus fully incorporates the terms and conditions. If perfect match does not exist then none of the set terms can be incorporated even if there exists similar terms between two proposal sets. The second method of knock out rule gives effect to the existing terms of agreement while ensuring that terms which are not agreed upon have not been incorporated. Though the knock out rule is largely applied in civil law systems, the English law promotes traditional last shot rule in offer and acceptance analysis. In analyzing standard terms used in the English law, there comes with it the potential that they will fully be incorporated but not diluted by negotiation. However they may not always incorporated (Gatt, 24). During the formation of the contract, both parties should be sure they are fully protected incase of any dispute. It is important to make sure that last shot has been fired before the contract is concluded. The supplier is always in a better position to gain this by using an acknowledgment which is properly worded accompanied by goods delivery. Buyers need to be cautious that they do not overlook the acknowledgement of orders referring to the terms of the supplier. They should not also accept goods which they have not verified that they match their terms and conditions. Electronic Communication The nature of common law and its foundations are deeply is deeply entrenched in meeting social evolution needs, such that the modern day sophisticated society finds justice as ancient society would have done. Rules of reasonableness as dictated by the common law adjudication assists the society to come to terms with all practical aspects of an issue such as use of electronic communication. The fact that use of electronic communication is an inevitable reality in the modern age makes common law the most applicable form of law to handle issues of contractual agreements. According to Hedley (246), UNCITRAL model offers a standardized reference from which communication in the modern age contracts can be approached. The author states that other forms of law such as legislation will be guided by the openness that the common law approaches electronic communication, citing the example of Irish legislation. Common law contract rules guiding the handling of electronic communication include fundamental clarifications such as consent among the parties, certainty of parties, subject matter certainty, price calculability as well as certainty of the consideration (Boss and Kilian, 34). In view of the above rules as given by the author, electronic communication as used in the law of contract must be clear of the necessary contract elements. Parties must demonstrate the presence of features that depict offer or acceptance as required in common law standards of a contractual agreement. General contract communication rules in common law provide that the contract will consider messages to be sent and received only in certain conditions. The location at which contractual communication takes place is usually a matter to be clarified in common law. The specific time that such communication took place is also important detail for verification. Issues of confirmation and feedback for such communication must also be clarified. Concerning a party’s response to communication advances from the other party, communication can be termed as synchronous or asynchronous with regard to the sender and recipient behavior (Hedley, 246). The author elaborates that the simultaneous reaction by the two parties must be demonstrated in order for communication to be considered in synchronous communication while asynchronous communication does not necessarily require the simultaneity concept. The traditional postal rule required parties to respond to such sent communication in a simultaneous manner where the content will be delivered. However, in electronic communication, asynchronous communication is favored. Besides the response from parties, sometimes customized links on the computer may be used to indicate acceptance to an offer on the electronic networks. There are several concepts that can be used to show willingness of a party to accept an offer. Clickwrap concept which involves clicking on some links to amount to an agreement, for instance clicking on “I agree” icons or “click here to agree” button amounts to communication in contract law. According to Hedley (248), without clicking such links, it is difficult for any party to demonstrate the acceptance of an offer. Likewise, the author states that it is difficult under common law to demonstrate the absence of a contractual communication of acceptance of an offer after clicking on the links. Apparently, many countries such as the United States, the UK and Ireland have entered into a legal regime that validates the applicability of this communication (Johnson, 339). While technicalities of the identity of the particular individual who effects the clicking exist, it is clear that the intention of communication of a contractual nature is already established (Gatt, 404). According to Gillies (144), the parties to a contract have access to the right of predictable jurisdiction regarding the nature of communication that electronic technology presents. The author uses judgments made by Lockerby and Rochlin where it was separately held that the communication concept contained in a contract must fulfill two conditions. One of the conditions is purposeful availment in the communication or contract while the other involves substantial justice. Due process dictates that the determination of communication in a contract must always offer justice to each of the contractual parties under common law. There are some tricky communication methods that appear to coerce parties to agree to contractual obligations. One of such communication methods include the browse-wrap agreement where entering a certain site is deemed to amount to acceptance of the terms of a contractual obligation posted by a certain party. The tricky part comes in because the browsing party finds it difficult to discern which sites are links to such contractual obligations (Hedley, 249). Usually, such sites amount to void contracts since it is difficult to determine the fundamental contractual concepts, but there are instances when clear link information contained in the page amounts to an agreement. Works Cited Alpa, G., Bar, C., Drobnig, U. & E.C The interaction of contract law and tort and property law in Europe: a comparative study. Munich, Germany: Sellier European Law Publishers, 2004. Print Barry, C. Conboy, K. Lang, M. Wojtkowski, G. & Wojtkowski, W. (eds) Information systems development: challenges in practice, theory and education. New York, NY: Springer Science + Business Media, LLC, 2009. Print Boss, A.H. & Kilian, W. eds. The United Nations Convention [etc], Kluwer Law International, October 2008:530) Bruner, S. P. Briefcase on contract law. Portland, OR: Routledge, 2004. Print Gatt, A. “Electronic Commerce- Click-wrap Agreements.” Computer Law and Security Report 18, 2002. Print. Gillies, L. E. Electronic commerce and international private law: study of electronic consumer contracts. Hampshire, England: Ashgate Publishing, Ltd, 2008. Print Hedley, Steve, The law of electronic commerce and the internet in the UK and Ireland. London, UK: Routledge, 2006. Print Johnson, P. “All Wrapped Up? A Review of the Enforceability of Shrink-Wrap and Click-Wrap Licenses in the United Kingdom and the United States.” European Intellectual Property Review, 25(2003):338-344 Lehr, W. & Pupillo, L. M. Cyber policy and economics in an internet age. Norwell, MA: Kluwer Academic Publishers, 2002. Print U. N United Nations Convention on the use of electronic communications in international contracts. United Nations Publications, 2007. Print. Read More