Contracting In Cyberspace

Authors

• Jeff C. Dodd
• James A. Hernandez

Abstract

Cyberspace law has started to take some shape as lawyers and merchants increasingly look to the same models and structures for guidance. Proposed statutes dealing directly with cyberspace contracting issues are working their way through the process of uniform and legislative law making. A few of these statutory laws have already made it through the gauntlet.4 Although this unsystematic growth through practice has led to a motley collection of legal standards governing cyberspace contracting, most of the issues that these standards purport to deal with relate to only five root problems:

(a)   Authority. When is the contract "my" contract? What electronic "actions" will be attributed to me? Can electronic machines be agents and bind contracting parties?

(b)   Methods of Formation. How are offers and acceptances electronically formed? Is a contract formed? When is it formed?

(c)   Authentication. If electronic signals are exchanged, without more, will this exchange be treated as the functional equivalent of writing? If I send certain electronic signals, will they be the equivalent to my "signature"? How can I make sure that my signals will not be wrongfully used-i.e., stolen-by another?

(d)   Payment. If one side of the bargain involves payment, can payment be effectively and securely made electronically?

(e)   Jurisdiction. What law governs the formation and enforceability of the substance of the electronic contract? Where can the parties to the electronic contract be sued?

This paper addresses these issues in the order listed above. In the course of discussing these remaining sets of problems, we advance not only our conjectures about the current state of cyberspace contract law but also cover some of the current and developing legislation that addresses these problems. This article examines current contracting practices, most prominently electronic data interchange agreements, touching upon the five root issues of cyberspace contracting.

Recommended Citation

Jeff C. Dodd & James A. Hernandez, Contracting In Cyberspace, 2 Computer L. Rev. & Tech. J. 1 (1998)