Contract formation in electronic commerce

Mariana Carvalho Homem

Keywords

Portuguese Decreto-Lei 7/2004. EU Directive 2000/31/CE, electronic commerce, contract formation, acknowledgement of receipt, confirmation of the order

Abstract

The Portuguese Decreto-Lei 7/2004, dated January 7, which implements the EU Directive 2000/31/CE, dated June 8, stipulates a contract formation scheme for electronic commerce which differs from the general rules of Contract Law, as it establishes four stages for its formation: online offer, order, acknowledgement of receipt and confirmation. Therefore, this study aims at clarifying the moment at which electronic contracts are concluded.

We begin by referring to the legal regimes applicable to these matters.

We proceed with an analysis of the legal nature of the stages to the contracting process, where we support the existence of an obligation to issue contractually binding offers and classify the acknowledgement of receipt and the confirmation of the order as contractual duties.

We also consider the differences in regime respectively for contracts concluded by exchange of electronic mail and executed immediately online.
Concomitantly, we focus on the question of when messages are deemed to be received.

Finally, we argue that electronic contracts are concluded when acceptance takes place, which in this case is at the placement of the order, and therefore propose that the general rules of Contract Law, as stated in the Portuguese Código Civil, are to be maintained.