March 14, 2007 no. 465 - Vol. 5
 

"The problem is never how to get new, innovative thoughts into your mind, but how to get old ones out. Every mind is a building filled with archaic furniture. Clean out a corner of your mind and creativity will instantly fill it."

Dee Hock

 

In today's Grammatigalhas we discuss e-contracts essentials from US and European persepectives.

  • Top News

Gonzales admits to errors in firing U.S. attorneys but rules out quitting

US Attorney General Alberto Gonzales, the country's top law enforcement officer, has admitted mistakes were made in the dismissal of key personnel. Gonzales "accepted responsibility" for the way eight US attorneys were fired, but denied personal involvement. Congress has been investigating whether the firing of the prosecutors - nearly one in 10 nationwide - was politically motivated. Some have called it a purge. Gonzales's top aide resigned on Monday as the scandal gathered steam. Charles Schumer, the number-three Democrat in the Senate, said Gonzales himself should resign. He condemned Gonzales's statement that he had not been personally involved in the firings: "To say that decisions were delegated... that is a sorry excuse."

Incest: an age-old taboo

It is not hard to see how incest can make family life very complicated, potentially turning brothers into fathers and mothers into sisters. Yet while most are clear that sexual acts between a related adult and child constitute abuse and as such must be punished, there is no modern consensus on whether society has the right to ban consensual sex between siblings, or indeed parent and adult child. Some geneticists put the risk of producing a disabled child as high as 50%, but this is hotly debated. Opponents of the incest ban also argue there are double standards, noting that no-one would ban those with hereditary diseases from reproducing. In some countries, the law has tried to take into account the risks while legalizing incest in certain circumstances. In Brazil, an uncle and niece may have a relationship provided they undergo health checks. In parts of the US, first cousins may marry if they are beyond reproductive age or ability. But even in countries where incest between adults is not prosecuted, the rights of both parents and children born of incest are not clear cut. France dropped incest from the penal code under Napoleon - 200 years ago. But siblings may not marry, and in 2004, a man who was having a sexual relationship with his half-sister was refused legal paternity of his own child. In the Netherlands meanwhile, where consensual incest is no longer prosecuted, the legal status of the child born of such a relationship is ambiguous. Sweden is the only country in Europe which allows marriage between siblings who share a parent.

Panel Recommends Easing Business Regulations

The Sarbanes-Oxley law of 2002 is making U.S. companies less competitive in global financial markets, and rules need to be changed, according to a new report by the bipartisan Commission on the Regulation of U.S. Capital Markets in the 21st Century.

Brazil anti-terror law aims at criminal gangs

Brazil has drafted a new anti-terrorism law but says it is more likely to target violent criminal gangs than Islamic militants believed by the United States to raise illegal funds in the country. The law would give stiffer sentences to those who set off bombs or attack buses or planes for political gain and to those who finance such crimes. The United States has long pressed Brazil to clamp down on what it says is terrorist-linked activity in the border area between Brazil, Paraguay and Argentina, home to a large Arab community with close ties to their Middle East homelands.

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  • MiMIC Journal

China lawmaker proposes dog tax

A Chinese lawmaker has proposed a tax on urban dog-owners to curb growing numbers of the animals and to fight rabies. The measure would help raise money to clean up dog waste that litters the country's major cities. Beijing blames a recent surge in rabies on the popularity of pet ownership, and owners' failure to vaccinate them.

Brazil to send business delegation to China

The Brazilian government is to send an entrepreneurial committee on a business mission to China. The Brazilian government intends to increase its exports to the Asian market such as technological products. The decrease in Brazil's share of the US market has led it to seek new markets for its exports.

China to decrease number of executions but keep death penalty

China plans to gradually lessen the number of executions it carries out while still keeping the death penalty , according to a statement released Sunday by China's Supreme People's Court, Ministry of Justice, Ministry of Public Security , and China's lead prosecutor. The statement indicated that China cannot entirely abolish the death penalty, but noted that if the possibility exists that a convicted individual did not commit the crime, then that person should not be executed. The legal groups also condemned confessions through torture  and said police must instead gather evidence according to the law.

  • Grammatigalhas

Legal Meaning Is Not Everyday Meaning

UCITA

The United States Uniform Computer Information Transactions Act (UCITA) is a proposed law to create a clear and uniform set of rules to govern such areas as software licensing, online access, and other transactions in computer information. It is intended to bring the same uniformity and certainty to the rules that apply to information technology transactions that the Uniform Commercial Code does for the sale of goods. In particular, UCITA attempts to clarify and/or codify rules regarding fair use, reverse engineering, consumer protection and warranties, shrinkwrap licenses, and their duration as well as the transferability of licenses. UCITA generally approves the validity of software licenses, including shrinkwrap and browsewrap agreements, as long as the user is given an opportunity to return the goods (at the seller's expense) if the license terms are found objectionable.

UETA

The Uniform Electronic Transactions Act (UETA) overarching purpose is to bring into line the differing US State laws over such areas as retention of paper records (checks in particular), and the validity of electronic signatures, thereby supporting the validity of electronic contracts as a viable medium of agreement.

UCC

Set of standardized state laws governing financial contracts. The code has nine separate sections, called articles. The most important of these are Article 3, dealing with negotiable instruments; Article 4, dealing with bank Deposits and Collections Article 5, dealing with Letters of Credit Article 7, dealing with Warehouse Receipts and other documents of Title and Article 8 and Article 9, dealing with Secured Loans.

The most recent addition to the UCC, Article 4A, covers corporate-to-corporate electronic payments, such as wire transfers and automated clearinghouse credit transfers, and has been adopted by most states. Article 4A does not address consumer transactions, deferring to the Electronic Funds Transfer Act and Federal Reserve Regulation E for regulation of consumer payments.

NCCUSL

The National Conference of Commissioners on Uniform State Laws

Lex mercatoria

Latin for Law Merchant; Synonyms: mercantile law, commercial law. The system of rules and customs and usages generally recognized and adopted by traders as the law for the regulation of their commercial transactions and the resolution of their controversies.

Unconscionable

When a court uses the word unconscionable to describe conduct, it means that the conduct does not conform to the dictates of conscience. In addition, when something is judged unconscionable, a court will refuse to allow the perpetrator of the conduct to benefit.

In contract law an unconscionable contract is one that is unjust or extremely one-sided in favor of the person who has the superior bargaining power. An unconscionable contract is one that no person who is mentally competent would enter into and that no fair and honest person would accept. Courts find that unconscionable contracts usually result from the exploitation of consumers who are often poorly educated, impoverished, and unable to find the best price available in the competitive marketplace.

Contractual provisions that indicate gross one-sidedness in favor of the seller include provisions that limit damages against the seller, limit the rights of the purchaser to seek court relief against the seller, or disclaim a warranty. State and federal consumer protection and consumer credit laws were enacted to prevent many of these unconscionable contract provisions from being included in sales contracts. 

Everyday "Legal" Jargon

E-contract essentials

Any offer to form a contract electronically should include:

(1)        a clear statement of the offeree's remedies (and limits thereon),

(2)        the applicable statute of limitations,

(3)        a description of what action on the part of the offeree will constitute acceptance,

(4)        a provision specifying acceptable forms of payment, including applicable taxes and shipping costs,

(5)        the offeror's return and refund policy (if applicable),

(6)        any disclaimers of liability the offeror wants included in the contract, and

(7)        a statement about the offeror's handling of information provided by the offeree, or gathered by  the offeror, before and after acceptance.

Pre-Dispute Planning: The offeror may also want to include provisions dealing with governing law, choice of forum, and alternative dispute resolution.

E-contracts

In an e-service environment, contracts are important for attaining business process interoperability and enforcing their proper enactment. An e-contract is the computerized facilitation or automation of a contract in a cross-organizational business process. We find that e-contract enforcement can be divided into multiple layers and perspectives, which has not been adequately addressed in the literature. This problem is challenging as it involves monitoring the enactment of business processes in counter parties outside an organization's boundary.

Electronic contracts start from being legal documents, to processes that help organizations to abide by the legal rules while fulfilling the contracts.  Deployment of electronic contracts poses a lot of challenges at three levels, namely conceptual, logical and implementation. Changes in the factors influencing the contract execution require changes at one or more levels.

The Internet has dramatically boosted the number of potential buyers from all over the world.

Although the Internet is more or less an American affair, the EU is wielding incredible influence when it comes to regulating the Internet.

The EU aspires to shape global e-commerce law and to remove obstacles to the functioning of the European internal market through a coherent legal and regulatory framework. This framework is based on the application of key internal market principles and human rights protections. In contrast, the U.S. approach is often associated with a purely economic rationale.

It is critical for U.S. and other businesses seeking to increase revenue from European customers to be aware of the strict EU regulations governing Internet sales. For example, EU laws afford consumers significant protections and allow them to sue foreign businesses in a consumer’s domicile or place of habitual residence.

The U.S. has developed two uniform state acts designed to bring legal certainty to electronic transactions. The two uniform acts are the Uniform Computer Information Transaction Act ("UCITA")  and the Uniform Electronic Transaction Act ("UETA"). 

UCITA deals with contracts or transactions in “computer information”. A contract involving computer information (for example a software license) may be concluded electronically or may be concluded in person or by other means. Thus, while UCITA deals with information technology it does not solely deal with electronic contracting.

UETA, by contrast, is a statute with broader reach – focusing on all types of electronic transactions.

These uniform acts are not binding law in a particular state until the state chooses to adopt the act through its respective legislative process. For instance, 48 states have adopted UETA. On the other hand, only two states have adopted UCITA.

Congress has also entered the fray of electronic contracting when it passed the Electronic Signatures in Global and National Commerce Act ("E-Sign") in 2000. Fundamentally, E-Sign adopts the most significant UETA provisions. E-Sign as a federal statute, and only preempts state law if a jurisdiction has not adopted UETA in an unrevised form. If a State has enacted UETA, then UETA may serve as the governing law for a contract between parties (even if it involves parties from different states). To the extent that a state has not enacted UETA, E-Sign would apply.

Both the E-sign Act and the UETA prevent a rule of law from denying the legal effect of certain transactions in interstate or foreign commerce on the ground that the signature, contract, or record of such transaction is in electronic form or if an electronic signature or electronic record was used in the formation of a particular contract. Both provide that if a law requires a record to be in writing or retained in its original form, then an electronic record satisfies the law. Finally, both provide that if a law requires a signature, then an electronic signature satisfies that law. E-Sign does not, however, prevent states from altering or superceding this general rule of validity provided it is based on the enactment of UETA and so long as the state law does not contain an exception to the scope of UETA that would be inconsistent with E-Sign.

The EU has created a coherent regulatory framework for electronic commerce. This framework includes the following Directives: Electronic Commerce Directive (hereinafter "E-Commerce Directive"), the "Distance Contracts Directives", Unfair Terms in Consumer Contracts Directive (hereinafter "Unfair Contract Terms Directive"), and the Community Framework for Electronic Signatures (hereinafter "E-Signature Directive").

In addition, a number of horizontal directives have been adopted, such as Privacy and Intellectual Property Rights in Cyberspace. A horizontal directive is EU legislation designed to cover all types of sectors. It is not designed to meet all the requirements of a particular sector. A horizontal directive complements specialized vertical sectoral legislation or a "vertical" directive.

Finally, several sectoral directives have been adopted. These include the Directives on Consumer Credit, the Directive on Package Travel, Package Holidays and Package Tours (hereinafter "Travel Packages Directive"), and the Timeshare Directive.

Legality of Online Contracts

The E-Commerce Directive is designed to facilitate the provision of electronic commerce services. Articles 9, 10 and 11 deal with electronic contracts in business-to-consumer ("B2C") transactions. The E-Commerce Directive adopts a minimalist approach, requiring a service provider to set out all the necessary steps so that consumers can have no doubt as to the point at which they are committed to an electronic contract. Article 2(b) of the Directive defines a service provider as "any natural or legal person providing an information service".

Electronic contracts are just as legal and enforceable as traditional paper contracts that are signed in ink within the EU. Article 9 of the E-Commerce Directive requires Member States to ensure that electronic contracts are rendered valid and to remove any prohibition or restriction on the use of electronic contracts, with certain permitted exceptions. Permissible derogations from the E-Commerce Directive include the following: 

  • Contracts that create or transfer real estate property rights, except rental rights;

  • Contracts requiring, in order to be valid, registration with public authority;

  • Contracts of suretyship; and

  • Contracts falling within the scope of the law of succession and family law.

In the U.S., UETA plays a similar role to the E-Commerce Directive in that it seeks to "remove barriers to electronic commerce." Unlike the E-Commerce Directive, however, UETA is "not a general contracting statute" and it does not require the recognition of electronic contracts. Instead, it approaches its goal "by validating and effectuating electronic records and signatures" on which contracts may be based. UETA provides:

  • A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

  • A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.

As with the derogations in the E-Commerce Directive, UETA provides exemptions from these recognition requirements; however, the exemptions under UETA are broader than the E-Commerce Directive. For instance, UETA also exempts laws governing the execution of wills, codicils or testamentary trusts. Transactions also fall outside of UETA's scope to the extent they are governed by the Uniform Commercial Code ("UCC"), unless the electronic records or signatures relate to transactions governed by Sec.1-107, 1-206, Art. 2 (sale of goods) and Art. 2A (leases). In addition, UETA also does not apply to transactions to the extent they are governed by UCITA and other laws identified by a state.

The E- Sign Act is similar to the UETA. The Act validates most types of electronic contracts and transactions by allowing the signatures, records, and notices associated with these contracts to be maintained in a digital form. However, the E-Sign Act differs from the UETA in the way it treats consumer transaction. UETA does not exempt any categories of consumer notices while the E-Sign Act provides strong consumer protections. E-Sign requires a specific and electronic consent process, before an electronic notice may replace a legally required written notice. The UETA merely requires that the parties agree to conduct transactions by electronic means (such as oral agreements and lex mercatoria) without providing any specific requirement of how consent can be proven. The E-Sign’s consent rule is provided in section 101 (c). Prior to consenting, the consumer must be provided with a clear and conspicuous statement of the following information:

  • any right or option of the consumer to have the record provided or made available on paper or in non-electronic form;

  • right of the consumer to withdraw the consent and of any conditions, consequences, or fees in the event of such withdrawal;

  • procedures the consumer must use to withdraw consent and to update information needed to contact the consumer electronically;

  • how the consumer may, upon request, obtain a paper copy of an electronic record, and whether any fee will be charged for such copy;

  • a statement of the hardware and software requirements for access to and retention of the electronic records.

As far as the consumer's consent is concerned, it must be obtained electronically and has to be expressed in a way that 'reasonably demonstrates' that the consumer is able to access the information in the electronic form, which will be used to provide the information that he/she is the subject of the consent. If there is any change in the hardware or software requirements needed to access or retain electronic records or if the change will create a material risk that the consumer will not be able to access or retain a subsequent electronic record that was the subject of the consent, the consumer’s consent must be re-obtained.

Similar to the UETA and the E-Commerce Directive, the E-Sign contains several exceptions from the general rule that documents required to be in writing may also be recorded electronically. The exceptions include the following documents governed by statutes: wills, codicils, testamentary trust, divorce, matters of family law, Uniform Commercial Code, court orders and notices, recall of product, notice of cancellation or termination of utility services and any document required to accompany any transportation or handling of hazardous materials etc.

Validity of Unfair Contract Terms In B2C Contracts

The EU's Unfair Contract Terms Directive provides a comprehensive set of rules and an Annex containing an illustrative list of 17 contact terms that may be regarded as presumptively unfair. The terms have the effect of altering the position which would exist under the ordinary rules of contract as they would either protect the supplier from certain sorts of claims in law which the consumer might otherwise make, or give rights against the consumer that the supplier would not otherwise enjoy. The Unfair Contract Terms Directive applies to all consumer contracts – and thus extends to electronic or lone contracting terms as well.

In the U.S., the issue of unfair contract terms is addressed in Section 111 of UCITA. UCITA only applies to transactions in computer information. Section 111 states that if a court finds a term of a contract to be unconscionable, it may choose not to enforce the term or the entire contract as appropriate. The provision does not provide a definition or an indicative list of what terms may be regarded as unconscionable. Section 111 allows the court to rule directly on the unconscionability of the contract or the particular term and adopts the unconscionability doctrine of Uniform Commercial Code § 2-302 (1998 Official Text). The basic test is whether, in light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so harsh, one-sided, or oppressive as to be unconscionable under the circumstances existing at the time of the making of the contract. Since UCITA deals with only a limited set of contracts, other contracts would be governed by Section 2-302 of the UCC, to the extent an electronic contract involved a sale of goods or the general common law defense of unconscionability to the extent that a contract was for services. In essence, they all apply the same legal standard for determining whether a contract term is so one-sided as to be unenforceable.

Article 20 of the E-Commerce Directive requires the Member States to determine the sanctions applicable to the infringements of national provisions adopted pursuant to the Directive, without clarifying the legal effects when the Information Service Provider failed to provide the required information. Similarly, UETA defers to other laws in determining the consequences of the seller’s failure to satisfy the information requirements.

Formation of Electronic Contracts

Contract law requires an element of intent, but the E-Commerce Directive does not make any reference to "the intention to sign" in relation to an e-commerce transaction. Instead, it imposes an information obligation, in order to help consumers reach intent. By following the technical steps to conclude a contract, the consumer indicates his intent to enter into a contract.

In contrast, UETA is more explicit and focuses on the party's intention to be bound and to sign. Section 7(d) states, "if a law requires a signature, an electronic signature satisfies the law". Electronic signature is defined as "an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record".

In most legal systems, a contract is formed through the exchange of offers and acceptance. However, the E-Commerce Directive introduces a third step in contract formation- confirmation. According to Article 11, "in cases where the recipient of the service places his order through technological means, the service provider has to acknowledge the receipt of the recipients order without undue delay and by electronic means". Thus, a contract is concluded in B2C transactions only when the recipient of the service has received an electronic acknowledgement of the recipient's order from the service provider. Article 11 applies only in situations where the Service provider made the initial offer, not in situations where the customer is the one who makes the offer. Additionally, the "acknowledgment requirement" does not apply in contracts "concluded exclusively by exchange of electronic mail or by equivalent individual communications".

The rationale for requiring an "acknowledgement of the receipt of the acceptance" is to provide protection from accidental contracts. The idea is to give the consumer a second chance to check whether he/she might have ordered a product that he/she did not want. It would also give a seller the opportunity to establish whether there were sufficient stocks available and whether the product has been offered at the right price. However, the requirement of "confirmation" seems to duplicate the functions provided in Art. 10(1) of the Directive, which requires that a service provider make available to customers the identification and technical means to handle error. There are no mandatory requirements concerning the content of the acknowledgement of the receipt. In order to avoid mistakes, it might be more beneficial if the Directive ensures a consumer’s right to reviewing the details of his or her contract before sending his or her confirmation. Thus, according to Article 11, if a service provider fails to send a confirmation to the consumer requesting acknowledgment, no contract is formed.

Contract formation under UCITA requires an offer and acceptance: "A contract may be formed in any manner sufficient to show an agreement, including offer and acceptance or conduct of both parties or operations of electronic agents which recognize the existence of a contract." "An offer to make a contract invites acceptance in any manner and by any medium reasonable under the circumstances." In addition, 

(4) if an offer in an electronic message evokes an electronic message accepting the offer, a contract is formed when an electronic acceptance is received; or

if the response consists of beginning performance, full performance, or giving access to information, when the performance is received or the access is enabled and necessary access materials are received. 

A confirmation would merely be repeating what the parties are already bound to perform and would have no legal effects under the U.S. law. 

Offers and Invitations to Deal

The Internet makes it possible to address specific information to an unlimited number of persons. EU legislation does not address the issue of what constitutes an offer and an invitation to deal (referred to as an invitation to treat). The determination of this issue is left to the individual member states. A company that advertises its goods and services on the Internet could be making an offer, depending on the national law of the Member State. An offer of goods or services through the Internet would be considered an invitation to offer under English law, but a "binding offer" under Danish or Spanish law. For example, Danish law recognizes the distinction between an offer and an invitation to treat but nonetheless holds that a statement of price attached to the goods constitutes a binding offer. It is probable that a website announcement displaying goods with a statement of price would constitute a binding offer under Danish law. If a website includes an offer of goods or services with the material elements of a prospective contract, it is deemed a binding offer under Spanish law. English common law rules require that an offer be communicated containing sufficiently definite terms. Offers must specifically state the price or quantity of goods. Otherwise, it is subject to being construed as lacking sufficient definiteness to qualify as an offer.

UCITA and UETA are silent on the issue of offers versus invitations to deal. Article 2 of the UCC, which governs contracts for the sale of goods, is applicable to Internet transactions involving the sale of consumer goods. Article 2 of the UCC liberalizes the common law rules pertaining to offers: "Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy".  Though open terms do not defeat the existence of a binding contract, courts must have some “reasonably certain basis for granting a remedy." "The more terms the parties leave open, the less likely it is that they have intended to conclude a binding agreement." The UCC does emphasize the presence of certain terms in particular circumstances, but in general, this greater "freedom to contract" exemplifies the self-regulatory approach.

Receipt

Determining the time of contract formation is essential since it identifies the moment of transfer of ownership and risk, among others. The exact time of acceptance or confirmation of acceptance is important especially if there are competing acceptances. The E-Commerce Directive provides: "The order and the acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them." The E-Commerce Directive focuses on accessibility, but the meaning of "able to access" is ambiguous. Rules regarding online acceptance will be subject to the rules of the national law of each Member States. Receipt or the time of contract formation could be at the moment when 

  • a consumer drafts an electronic message of confirmation of acceptance;

  • an electronic mail is sent by the acceptor;

  • it is accepted in the Internet Access Provider's mailbox;

  • a communication of acceptance has been received by—or brought to the mind of—the offeror;

  • a recipient had the opportunity to review the confirmation of acceptance.

UETA provides default rules regarding when and from where an electronic record is sent, and when and where an electronic record is received. Section 15 states that 

  • Unless otherwise agreed between the sender and the recipient, an electronic record is sent when it:
     

    • is addressed properly or otherwise directed properly to an information processing system that has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record;

    • is in the form capable of being processed by that system; and

    • enters an information processing system outside the control of the sender or of the person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient which is under the control of the recipient.
       

  • Unless otherwise agreed between a sender and the recipient, an electronic record is received when:
     

    • it enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and

    • It is in a form capable of being processed by that system.

Additionally, UCITA deals with the timing and effectiveness of electronic messages, as well as with the impact of an acknowledgment. An electronic message is effective when received, even if no individual is aware of its receipt. This constitutes a rejection of the "Mailbox Rule" for electronic messages, thereby placing the risk on the sending party if receipt does not occur. The receipt of an electronic acknowledgement of an electronic message establishes that the message was received, but it does not establish the content of the message received. As stated above, UCITA only relates to contracts in computer information. Thus, the mailbox rule is still in place for many electronic contracts in the U.S., meaning that an acceptance is effective when sent (dispatched).

Treatment of Mistakes and Error

The E-Commerce Directive deals with the question of mistake and error by obliging service providers to employ error–correction procedures. Art. 11 (2) of the Directive provides:

Member States shall ensure that, except when otherwise agreed by parties who are not consumers, the service provider makes available to the recipient of the service appropriate, effective and accessible technical means allowing him to identify and correct input errors, prior to the placing of the order. 

However, this provision would not help a consumer who has realized he or she has made a mistake after he or she has sent a confirmation. The E-Commerce Directive does not address the question of mistakes and errors in electronic commerce. It is not concerned with the substantive issues that arise in contract formation. The law on mistake and error of each Member State governs these situations. 

In contrast, both UCITA and UETA address the issue of mistake after the contract has been formed. In an automated transaction, a consumer is not bound if the mistakes were caused by an electronic error. An "electronic error" is defined as "an error in an electronic message created by a consumer using an information processing system if a reasonable method to detect and correct or avoid the error was not provided". Both uniform laws allow the consumer to avoid the effect of mistake by notifying the other party promptly on learning of the error and by taking reasonable steps that conform to the other party’s reasonable instructions, to return to the other person, or to destroy the consideration received, if any, as a result of the erroneous electronic record. In a person-to-person transaction, if the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure, but the other party has not, and the nonconforming party would have detected the change or error had the other party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record.  

This provision deals with changes and errors occurring in transmission between parties to a transaction. It only applies to situations where it is possible to detect an error / change because of the security procedure and where a one party fails to use the procedure and thus is unable to detect the error. In such a case, consistent with the law of mistake , the record is made avoidable at the instance of the party who took all available steps to avoid the mistake. The rationale for voiding the record is based on the principle that the non-conforming party had a reason to know of the mistake, while the conforming party does not have the risk of mistake. 

In cases other than those dealt in Section 10 of UETA, the common law doctrine of mistake applies to resolve the dispute.

Contract Formation Through Electronic Agents 

The E-Commerce Directive does not address the issue of automated transaction made through electronic agents. Wooldridge and Jennings define an electronic agent as a hardware or software-based computer system that enjoys the following properties: autonomy (capacity to act without the direct intervention of humans or others), the capacity to interact with agents or humans, the capacity to perceive their external environment and to respond to changes that are coming from it, and the capacity to exhibit goal-directed behavior by taking the initiative. 

The EU law lags behind technological developments, instead of anticipating them. The explanatory notes of the proposal of the E-commerce Directive mention that Member States should refrain from preventing the use of certain electronic systems such as intelligent electronic agents for making a contract. However, the final version makes no reference to electronic agents in the main text or in the recital. The deletion of the proposed text reflects EU’s failure to respond to the tremendous growth of e-commerce. The preamble of the Directive states that the purpose of the Directive is to stimulate economic growth, competitiveness and investment by removing the many legal obstacles to the internal market in online provision of electronic commerce services. However, the exclusion of the provision giving legal recognition to electronic agents is a step backward and a failure to recognize the role of electronic agents in fostering the development of e-commerce such as, lower transaction costs, facilitate technology and adherence to international conventions. 

A number of other jurisdictions have either proposed or enacted legislation that deal with the use of autonomous electronic agents in electronic commerce. For example, the International Convention on the Use of Electronic Communications in International Contracts contains provisions dealing with such issues as determining a party's location in an electronic environment; the time and place of dispatch and receipt of electronic communications and the use of automated message systems for contract formation. Article 12 states, “A contract formed by the interaction of an automated message system and a natural person, or by the interaction of automated message systems, shall not be denied validity or enforceability on the sole ground that no natural person reviewed or intervened in each of the individual actions carried out by the automated message systems or the resulting contract.” The adoption of the uniform rules was aimed in removing obstacles to the use of electronic communications in international contracts, including obstacles that might result from the operation of existing international trade law instruments, and to enhance legal certainty and commercial predictability for international contracts and help States gain access to modern trade routes. 

UETA expressly recognizes that an electronic agent may operate autonomously and contemplates contracts formed through the interaction of electronic agents and those formed by the interaction of electronic agents and individuals. UCITA also contains provisions supporting the ability of electronic agents to make binding contracts. 

Electronic Signature 

The E-Signature Directive recognizes the validity of two types of signatures: an electronic signature and an advanced electronic signature. The former should not be denied legal effectiveness and admissibility as evidence in legal proceedings solely on the grounds that it is in electronic form. The advanced electronic signature satisfies the legal requirements of a signature in relation to data in electronic form in the same manner as a hand-written signature satisfies those requirements in relation to paper-based data and is admissible as evidence in legal proceedings. The advanced signature qualifies only when it is based on a qualified certificate, which is defined in Annex I and Annex II of the Directive. The qualified certificate must also be based on a secure signature creation device, which should meet the requirements of Annex III. In order for an advanced electronic signature to meet the legal requirements, it has to satisfy the criteria of Annexes I, II and III. 

UETA takes a different approach to signature—one that is technology neutral. Unlike the E-Commerce Directive, UETA does not distinguish between the different types of electronic signatures. "If a law requires a signature, an electronic signature satisfies the law". An electronic signature is defined as an “electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” The purpose is to validate electronic signatures as equivalent to writing. The key emphasis is the intent of the party to sign the record. In contrast, the E-Commerce Directive focuses on satisfying the criteria of non-repudiation, integrity, security and confidentiality of the signature based on the identification of the signatory and the certificate issued by the Certificate Providers. 

Conclusion 

The rationale behind the e-commerce legislations of the EU and the U.S. is similar in that they create legal certainty by validating electronic contracts. However, the U.S. laws are broader in scope. UETA covers all types of contracts, not just electronic contracts, and UCITA covers all types of computer information contracts. In contrast, the EU directives typically deal only with consumer contracts by exempting B2B transactions. The E-Commerce Directive contains extensive information requirements prior to the conclusion of the contract and the mandatory requirement of 3-steps procedures for the formation of contract. UETA defers to the other laws in providing the answer on what information must be provided and does not require “confirmation” as a requisite to contract formation. UETA and UCITA offer more extensive guidelines on the issue of mistakes, contracts through electronic agents, and they clarify the exact moment when a contract is concluded. American companies competing in Europe must make their offerings relevant and in compliance with EU regulations and national laws of the 25 Member States. They must comply with the requirements of the various EU legislations governing contracts and come to terms with the legal challenges posed by the divergence of national contract laws and inconsistencies from the way the EU laws are implemented in the Member States. 

As If Your Life Depended On It… or How to get to Carnegie Hall? - Practice, practice

Long shot 

A vain attempt, unlikely prospect or a wild guess, is originally military, from the lack of success to be expected when firing at a distant target.  

·By a long shot (by a considerable amount) comes from the same source.

·A shot in the dark (guess) is related, perhaps a coinage by George Bernard Shaw (1895).

·A shot in the arm (stimulus, encouragement) is medical, from a hypodermic injection.

·A shot across the bows (warning, sometimes called warning shot) is naval, from the practice of firing across a ship's course to warn, intimidate or bring to a halt, but not to damage. 

Electrocute / Shock 

To electrocute is to kill using electricity. If you live to tell the tale, you've been shocked, but not electrocuted. For the same reason, the phrase "electrocuted to death" is a redundancy.

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  • Historia Verdadera

Ley para deudores

Existe mayoría en la Corte Suprema argentina para ratificar la constitucionalidad de la nueva Ley de Créditos Hipotecarios en dólares, es decir la validez del sistema de fideicomiso establecido por el gobierno.

Tarifas Panamá

El gobierno de Chile en breve apelará la decisión de las autoridades martítimas de Panamá  que decidieron incrementar en un 46% las tarifas por el uso del Canal. El 90 % de los negocios que hace Chile al exterior lo hace por el Canal de Panamá.

Fungicidas

El gobierno ecuatoriano demandó a Colombia ante el Consejo de Derechos Humanos de las ONU por el problema de las fumigaciones en la frontera a plantaciones de coca. El presidente Alvaro Uribe aun no se pronuncio sobre el tema. 

  • Brief News

Gay sex immoral says US general 

Gay rights groups in the US have complained after the country's top military commander said he believed homosexual acts were "immoral". Marine General Peter Pace, Chairman of the Joint Chiefs of Staff, said he backed the Pentagon's "don't ask, don't tell" policy regarding homosexuality. The policy bans homosexual acts between members of the military. US service staff can be dismissed if they reveal themselves as gay. A gay rights group called the comments "a slap in the face to gay men and women serving with honor and bravery".  

Celibacy 'obligatory' for priests

Pope Benedict XVI has confirmed that celibacy "remains obligatory" for Roman Catholic priests. He also restated the ban on Communion for divorced Catholics who remarry, and on abortion, euthanasia and gay unions which he said were "not negotiable". "These values are not negotiable," the Pope wrote, listing "respect for human life, its defense from conception to natural death the family built upon marriage between a man and a woman". 

In Mexico, Bush Promises Progress on Immigration

President Bush and Mexico's President Felipe Calderon hold their first meeting since Calderon was sworn in last December. Mr. Bush reassured Mexicans he has not given up on overhauling U.S. immigration policy they deeply resent.

Viacom will sue YouTube for $1bn 

Entertainment giant Viacom Media says it will sue web search engine Google and its video-sharing website YouTube for $1bn. Viacom, which owns MTV and Nickelodeon, says YouTube uses its shows illegally. Viacom alleges that about 160,000 unauthorized clips of its programs have been loaded onto YouTube's site and viewed more than 1.5 billion times. Google says it is "confident" that YouTube has respected the legal rights of copyright holders.

Memory loss fear over obesity ops 

Weight loss surgery could lead to a condition, which can result in memory loss, according to US research. The syndrome - Wernicke encephalopathy - affects the nervous system and brain, and can lead to confusion and the inability to co-ordinate movement. 

Mother Tongue

In São Paulo, Brazil, the Museum of the Portuguese Language vividly unites language and cultural identity. "Brazilian schools neither reflect nor teach Brazil," says the museum's curator, the sociologist and award-winning documentalist Isa Grinspum. "Brazilians are ignorant of their own history." Hence this impressive mission: "To show that our language is fundamental, the founder of our culture. The museum will be a place of celebration and praise for the Portuguese language—a dynamic space, playful, interactive, where Portuguese speakers will have a living identification with their mother tongue." "Here's a nation that has been able to find extraordinary joy in sharing music, food, and traditions, and ended up with this mixture of cultures and races that's a model of what the real future could be like. I guess that's why, in the end, this idea of mistura is really beautiful." 

US probes sub-prime mortgage firm

US markets regulator the SEC is investigating troubled sub-prime mortgage lender New Century, the firm has revealed. New Century has stopped making loans and its shares have tumbled, with some analysts now predicting bankruptcy. The firm also said it had received a grand jury subpoena for documents. Sub-prime lenders provide money to clients with a poor credit history, and the current problems have been sparked by a rise in defaults and bad loans. These, in turn, have been triggered in part by a relentless rise in interest rates from rock-bottom levels in the past four years, and falling house prices and rates of homebuilding in many parts of the US. 

Lending crisis ignites broad economic fears 

Stocks dive as data show more home loans in delinquency and new foreclosures at a record. Economists have been arguing for weeks about the crisis in mortgage lending to risky borrowers and whether it could turn the entire economy sour. 

Brazil to build wall on Paraguay border

Brazil will build a wall on a small portion of its border with Paraguay in an effort to combat contraband and smuggling.  The wall will be constructed on a mile-long section of the border near the "Friendship Bridge," one of the busiest crossing points between the two nations.  Authorities hope the wall will create an obstacle for smugglers who try to cross the border without passing through check points on the bridge. 

Arcelor Mittal Loses Appeal Against Cost of Buyout  

Arcelor Mittal, the world's largest steelmaker, lost an appeal against a Brazilian security regulator's ruling that may force it to pay $5.24 billion to buy stock in its Brazilian unit that it doesn't already own. Mittal's first offer for Arcelor came less than two months after Arcelor joined several Brazilian units with multiple classes of stock into a single company with one class of shares. The new company's by-laws required any company that took over Arcelor to extend the same terms to minority shareholders in Brazil based on the takeover price of Arcelor and Arcelor Brasil's share of the entire Arcelor group, the regulator said.

Merck loses key US Vioxx lawsuit

A US jury has awarded damages of $20m against drugs giant Merck in a case arising from its withdrawn painkiller Vioxx. The judgment means the jury may now move on to assess punitive damages against Merck. Vioxx was pulled from the market in September 2004 after a study found it could double the risk of heart attacks.

  • Daily Press Review

Africa

Ruling a blow to anti-corruption war
East African Standard, Liberal daily of Nairobi, Kenya

Tsvangirai released into lawyers' custody
Mail and Guardian, Liberal daily of Johannesburg, South Africa

Levy hopes for peace in Zimbabwe
Times of Zambia, Government-owned daily of Lusaka, Zambia

Americas

Dr. Shorey: Single Sex schools the way to go
Barbados Advocate, Independent daily of St Michael, Barbados

8 killed in attack on Thai passenger van
The Globe And Mail, Centrist daily of Toronto, Canada

Brilliant start - West Indies win Cup opener - Jamaica gets high marks from ICC boss
Jamaica Gleaner, Centrist daily of Kingston, Jamaica

Exiled Mexican wolves ready to return home
The Guadalajara Colony Reporter, Independent weekly of Guadalajara, Mexico

Asia Pacific

Airliner lands sans nose gear Kochi-bound ANA crew, passengers safe after wheel failure
Daily Yomiuri, Conservative daily of Tokyo, Japan

China's six major goals for space science development
People's Daily Online, Pro-government daily of Beijing, China

$10m claim for bushfire 'failure'
The Sydney Morning Herald, Centrist daily of Sydney, Australia

Maoists Revolt in Kailali, Form New Tharu Body
The Himalayan Times, Independent daily of Kathmandu, Nepal

SC tells Comelec to settle LP issue
The Manila Times, Pro-government daily of Manila, Philippines

'Many complaints against unit'
The Sun, Independent daily of Kuala Lumpur, Malaysia

Europe

Germany Aims for the Moon -- But Why?
Deutsche Welle, International broadcaster of Cologne, Germany

Outgoing Parliamentary Speaker urges calm on NATO issue
Helsingin Sanomat, Centrist daily of Helsinki, Finland

Foreigners  in  Kyrgyzstan to face penalties if they refuse to take HIV/AIDS tests
Interfax, Government-owned news agency, Moscow, Russia

Father took baby from hospital in mercy dash to A&E
Irish Examiner, Centrist daily of Cork, Ireland

Putin Sends Elections Chief Packing
The Moscow Times, Independent, English-language daily of Moscow, Russia

Finding the bodies to fill the Bosnia graves
The Scotsman, Centrist daily of Edinburgh, Scotland

Cold weather front brings late winter
Turkish Daily News, Independent daily of Istanbul, Turkey

Middle East

Forever guilty
Al-Ahram Weekly, Semi-official, English-language weekly of Cairo, Egypt

Kingdom to Join ME Talks
Arab News, Pro-government, English-language daily of Jidda, Saudi Arabia

Solana lends support for Saudi effort to end impasse in Beirut
The Daily Star, Independent, English-language daily of Beirut, Lebanon

New bridge to ease Dubai traffic
Gulf News, Independent daily of Dubai, United Arab Emirates

U.S. envoy: We won't stop Israel from talking to Syria
Ha'aretz, Liberal daily of Tel Aviv, Israel

President, ministers arrive in Yazd province
Islamic Republic News Agency, Government-owned news agency of Tehran, Iran

Kadima: PM won't quit over Winograd Committee findings
The Jerusalem Post, Conservative daily of Jerusalem, Israel

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