Legal aspects of Digital Contracts, E-commerce (Part One)

ECOMMERCE, A BRIEF INTRODUCTION

eCommerce certainly needs no introduction due to its ever-increasing popularity; in 2022, product eCommerce continued its run, albeit at a slower pace (+8%) than in 2021 (+18% over 2020), reaching EUR 33.2 billion. Online purchases of services, on the other hand, completed their recovery path (+59%) and reached EUR 14.9 billion (1) .

Already in its communication of 15 April 1997, the European Commission had realised its scope and had anticipated the times by attempting to frame it by stating that “electronic commerce has as its object the conduct of business by electronic means. It is based on the electronic processing and transmission of information, including text, sound and video-images. Electronic commerce encompasses many different activities, such as buying and selling goods and services electronically, online distribution of digital content, electronic funds transfer, electronic stock exchange trading, electronic bills of lading, tendering and auctioning, collaborative design and planning, online selection of suppliers, direct marketing of goods and services to consumers, and after-sales service’(2) .

The true innovative scope of eCommerce lies in its enabling technology, the web, which was created with the aim of breaking down barriers between people. Among the barriers that the web has had the merit of breaking down are those related to the nationality of customers for businesses; through eCommerce, it is possible to exponentially expand the potential audience of buyers while continuing to work from one’s desk.

ECOMMERCE, LEGAL FRAMEWORK

It has been evident for a long time that this new technology and the ensuing eCommerce phenomenon needed new rules that could better adapt to the dematerialisation of commerce, which is (more or less rapidly) shifting from physical to virtual spaces.

From a purely legal point of view, the dematerialisation of commercial spaces is relevant for several contractual profiles, including:

• consent formation (e.g. fully automated consent acquisition through forms);
• performance of the contract (e.g. purchase of computer software via download);
• Method of payment of the price (e.g. payment by connection to your third-party payment service account. Entering debit/credit card identification data).

These new paradigms have made it necessary for the legal interpretation of the eCommerce phenomenon to attempt to adapt concepts typical of civil law in the area of contracts

WHERE, HOW AND WHEN IS A DIGITAL CONTRACT CONSIDERED CONCLUDED?

Assuming that a contract is concluded at the time when the offeror has knowledge of the other party’s acceptance; that the acceptance must reach the offeror within the time limit set by the offeror; and that where the offeror requires a particular form for acceptance, the acceptance has no effect if it is given in a different form (3) ; we understand at once that the application of these principles requires certain differentiations.

The first major difference relates to the manner in which the parties decide to enter into the contract, distinguishing it into

1. sale via eMail;
2. sale via eShop (eCommerce portal).

In the first case, the typical scheme of the presumption of knowledge is deemed applicable, whereby the proposal, acceptance, revocation thereof and any other statement addressed to a given person for the above-mentioned purposes are deemed to be known by that person at the time they reach the addressee’s address, unless the addressee proves that it was unreasonably impossible for him to have knowledge thereof. From the application of this principle, therefore, the extreme usefulness of PEC (certified electronic mail), the use of which has found its way into the legislation of several states for years, has become evident(4).

In the second case, on the other hand, we may consider applicable the typical scheme of the public offer which, if it contains the essential particulars of the contract for the conclusion of which it is intended, counts as a contractual proposal, unless the circumstances of the case or commercial usage indicate otherwise. According to that scheme, the revocation of the offer, if made in the same or equivalent form as the offer, is effective vis-à-vis all, even those who had not been informed of it (5).

In relation to the place of conclusion of eCommerce contracts, the dematerialisation that characterises this peculiar type of contract produces considerable difficulties of interpretation, so much so that there is no single thesis on the matter

According to a first thesis, the contract would be concluded at the place where the offeror downloaded the e-mail containing the acceptance, but this thesis is strongly criticised because it would generate more doubts than certainties in relation to the extreme portability of the instruments through which the exchange of e-mails is possible.

Criticism of the previous thesis, in order to support regions of legal certainty, has led to a second thesis according to which the place of conclusion of the contract must be identified in the place where the service provider containing the proposer’s mailbox is located. However, even this thesis does not produce results that can be considered decisive since, again by virtue of the dematerialisation of the medium in question and the extreme portability of data that characterises the web, it is quite possible that the ‘region’ where the service is ‘hosted’ is not easily identifiable.

For these reasons, a third thesis has emerged that would solve the problem of the place of conclusion of the eCommerce contract by disassociating itself from the relationship with the medium used for its conclusion in order to refer to parameters whose certainty is decidedly solid. According to this thesis, the place of conclusion of the contract would be the place where the business or professional activity of the recipient of the acceptance is based, regardless of the place where the computer or site used is located.

POSTPONEMENT

In this first part, we briefly framed the eCommerce phenomenon and delved into where, how and when a digital contract is considered concluded. In next week’s in-depth analysis of the legal aspects of digital contracts we will take a closer look at which law is applicable to digital contracts, trying to provide all the necessary coordinates to orient oneself in this dimension.

Notes:

1. https://www.osservatori.net/it/ricerche/comunicati-stampa/ecommerce-acquisti-online-crescita

2.  Community Communication (European Union) 16-04-1997, No COM(97)157

3.  Art. 1326 C.C.
4.  Art. 1335 C.C.
5.  Art. 1336 C.C.