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Oral and Written Contracts

A contract except a few can be made orally. Writing is not the essential element. A web-site offering sale of chattels such as books, ornaments, computers etc need not concern about the requirement of writing and signature. However, in the eyes of common law signature is by nature a means to authenticate a person's identity and hence ensuring that the party's identity is not easily denied. In Goodman v J Eban Ltd [1954] 1 All ER 763, it was held that “The essential requirement of signing is the affixing, either by writing with a pen or pencil or by otherwise impressing on the document, one's name or “signature” so as to personally authenticate the document”.

There exists no decided cases in common law that the typed signature or scanned signature contained in an email is legally equivalent to a hard-written signature. However, Goodman seems to suggest that in so far as a “thing” is sufficient for the sake of authenticating a person, it amounts to “signature”. Digital signatures have formally ascribed through the Electronic Transactions Ordinance to become a “signature”. Therefore, digital signatures are given their “signature” status by legislative intervention and hence the function of authenticating a person. However, it must be noted that digital signature having the effect equal to manual signature must a recognized one issued by a certification authority recognized under the Electronic Transaction Ordinance. These include the Postmaster General of HKSAR Government and Digi-Sign. Widely known certification authorities such as Verisign may not have been recognized under the Ordinance and hence the status of digital signatures issued by them are still governed by the common law.

Minors contracting online

Transaction made on the Internet does not require face-to-face contact or communications.

Adults and minors are alike can enter into transaction by clicks and submission of electronic order forms. There exists no definitive mechanism (except perhaps the use and acknowledgement of digital signature) to find out the age of the contracting party. In a face-to-face transaction, the seller can immediately find out that the potential buyer may be below 18 and hence has no capacity to enter into a bargain legally binding on him. The seller can demand identification through production of Hong Kong Identity Card or driving licence. E-commerce enables minors to make purchases online because age is not detectable. Registration of the buyer's information indulge his purported age can be fraudulent provided by minors. Some merchants only accepts purchases online through credit cards payment and by considering that credit cards are good age identification tool because no minors possess credit cards except in fraudulent situation. Digital signatures can be a good tool to identify the age of a contracting party. For instance, a personal e-cert issued by Hong Kong Post to a minor bears the warning note that the owner of the e-cert is a minor.

However, the use of digital signature are not popular in Hong Kong. Requiring buyers must possess an e-cert as a pre-requisite to make a purchase is too onerous on the customers and hence narrowing the customers’ base.

Sufficient Consideration

A party who wish to enforce a broken contract must show that he has parted with a consideration in the bargain. The usual forms of consideration is the price paid and the goods delivered. Therefore, a gratuitous promise or “agreement” cannot enforceable as a contract. A consideration has to be sufficient and need not be adequate.

Acceptance must be communicated

Acceptance must be communicated to the offeror for having a legal effect.

However, this is subject to the exception under the “postal rule” held by Adam's v Lindsell [1818] 1B & Ald 681. Under the postal rule, if a communication is by letter or telegram, the party trying to prove communication does not usually have to show that the recipient has actually receive it. The postal rule only requires the acceptance to be delivered only. The underlying reason is that business deals will become uncertain as nobody would know whether their acceptance had worked or not to make a contract. In Byrne v Van Tienhoven [1880] 5 CPD 344, the English court held that a contract was under by an effective acceptance when on that day and the plaintiff receive offer and send acceptance by telegram “upon the principle that the written of the offer has expressly or impliedly assented to treat an answer to him by a letter duly posted as a sufficient acceptance and notification to himself”. However, if the acceptance communicated by electronic means other than by post or telegram, the “postal rule” does not apply. Electronic communication can be in the form of telephone, telex or in the Internet environment emails or online form, transmissions. In Brinkibon v Stahag Stahl [1983] 2 AC 34, the House of Lords held that a telexed acceptance is effective when and therefore where it is received unless the parties could be held to have intended otherwise. The proposition equally applies to fax messages even though the acceptance is in the facsimile is received from the machine rather than being a physical document forwarded by the offeree (Susanto-Wing Sun v Yung Chi [1988] No.A8177. The emergence of emails, fax and other forms of electronic communication have rapidly eroded the importance of the postal rule. Online auction is a popular form of e-commerce activity. The leading web-site platform is of course eBay.com. However, it must be noted eBay does not put goods for sale at eBay.com and hence it is not an auctioneer in capacity. eBay only provides a platform to its members to put goods for sale through auction and for members to offer bids.

In law, the putting up of goods for sale by auction is not an offer. The person who bids makes an offer (and hence be the offeror) which the auctioneers can either accept or reject. In a typical online auction, a number of people offer bids which are openly displayed on the web-site. Section 60 of The Sale of Goods Ordinance provides that each higher bid destroys all earlier bids. The legal principle in auction is that the auctioneer's final determination of the successful bid is the only acceptance. However, online auction platform providers have strict requirements on members who put their goods for bid on their web-site. A good placed for auction with conditions fulfilled by bidder ought to be sold and delivered. Auction participants are encouraged to grade their counter-parties in each transaction for subsequent participants to refer. Delinquent participates may cause their membership qualified.

Offer and Acceptance

An offer is made by a party either being a buyer or seller to the other party with the intent in definite terms to be accepted by the other party. An offer must be communicated to the other contracting party. An online advertisement made by a seller is in law and invitation to treat an not an offer. Therefore, in such context, an offer is usually made by a buyer who communicates with the seller his intention to buy a certain good from him. For instance, a buyer received an email newsletter from an e-commence merchant. He than clicks to response to it by filling an online form indicating his intention to buy a certain good. This is an offer. The online merchant on receipt of the online form may then response by agreeing to it. This response is called acceptance. The person who makes the offer is called the offeror and the person who accept the offer is called the offeree.

Contracts are normally arrived and become legally enforceable upon acceptance. Therefore, it is important to find out when an acceptance takes place. The traditional view considers an advertisement as an invitation to treat. An advertisement can be in the form of an online catalogue bulk email messages (whether unsolicited or not). However, if an advertisement is communicated in clear terms. For instance, with the produce clearly described, the price and availability clearly made known to online visitors without any reservations, it can be easily considered by the law as an offer. Therefore, an online customer clicking on the “yes” or “buy” button on a virtual shopping cart will be treated as an acceptance. An online merchant making definitive advertisement may easily become liable for breach of contract if no available stock can be found after receiving a customer's order. Prudent online merchant should conspicuously make known to the online buyers that placing of orders is subject to availability of the stocks, thereby having the effect of making the ordering an offer binding only upon a definitive acceptance by the online merchant. Although the order is subject to a subsequent condition i.e. that the stock is available. If the buyer's response towards an online advertisement is an offer, an offer can be withdrawn by the offeree (i.e. the online merchant) has communicated its acceptance may reputation web-sites such as Amazon.com in fact permits customers to cancel their orders before shipments made by the merchant. Alternatively, goods can be returned to the seller without liability within 30 days of the purchase goods returned are only required to pay the shipment costs.

An offer made online over the Internet must be carefully handled. An offer made to the entire would is one which the offeror (an online merchant) is glad, to be accepted by any offeree (an online customer). Offer must therefore be carefully controlled by the offeror. For instance, an online offer posed with wrong price tag can have a disastrous effect on the online merchant if it is accepted by a large number of if online customers. The advertisement in Carlill v Carbonic Smoke Ball Co. [1893] 1QB 256 offered £100 to anyone who used a medicine and still caught influenza. That offer was accepted whenever anyone used the smoke ball according to the product instructions.

Elements of Contract

How does an online seller ensure that contract is enforceable and he can get pay?

To achieve that, he must set up a platform capable of agreeing with his customers. As to payment, it can be made outline by the customer after ordering.

Alternatively, it can be paid through post e.g. cheque, money transfer or face-to-face. Payments being made immediate to ordering of the purchase can reduce the risk of repudiation is denial of the contract or fraud and hence is preferred whether an online contract is legally enforceable depends on the valid application of the laws on electronic transactions.

A contract must consist of the following 4 elements :

offer,

acceptance,

consideration,

intention to enter into legal relation.

Of course, the parties entering into the contract must have the legal capacity to do so e.g. business contracts made by minors (i.e. person under 18) is not enforceable against the minor. Besides, the contract must be legal which means that for instance, a person in Hong Kong betting online on a virtual casino situates outside Hong Kong is no enforceable through the Hong Kong courts based on Hong Kong laws. A person in Hong Kong gambles online will also attract criminal liability under the Gambling Ordinance.

Laws of Contract and Online Contracts

The laws of contract are governed by common law cases. E-commerce relates to the making of contracts are made through electronic communications. The messages are exchange electronically over the Internet or other point-to-point terminals such as ATM machines, hand-held devices such as EPS terminates. Where transactions are made, it has to go through 2 basic processes: first is the entering into a valid and enforceable contract; second is making payment. Despite the widespread use of Internet and adoption of telecommunication devices such as phone terminals (either fixed line desktop telephones or cell phones), these 2 processes are not always done in a “straight-through” manner mature E-commerce web-sites may have the 2 processed combined so that an online customer may agree to a purchase of a certain stock e.g. a bank or CD and at the same time pays through the credit card payment gateway. Some goods such as a digital photo or software can be delivered online though downloading but most require physical delivery e.g. a book or a CD.

Merchants and a buyer must ensure that an online transaction must be valid and enforceable so that merchants buyers cannot easily deny the contract's existence. Buyers get the goods order and sellers get pay.

Fundamental Questions on E-Commerce: Security Concerns in E-Commerce

1. Authentication: is a person really who he claims to be?

2. Message Integrity: has the communicated content been tampered with?

3. Privacy and Confidentiality: can I rely on the Internet to transmit the content without fear of losing confidentiality?

4. Repudiation: will electronic contracts be binding and not repudiated by the parties?

E-Commerce Trend

Many trades and industries have in the past benefited from the use of electronic transactions or trading without the Internet. This similarly happens in Hong Kong. The EDI (electronic data interchange which has been moderated and promoted by Tradelink in Hong Kong's situation), electronic banking through public telephone and private ATM network and credit card transactions are the most obvious and prominent examples. The associated networks are costly and by nature a private network and hence their communications protocols are proprietary.

The welcoming trend of the use of the Internet as an alternative which carries little cost and wide openness has caused a lot of security concerns, name on authentication of the parties, on preserving message or data integrity made during communications. The most widely accepted technology presently is the Public Key Infrastructure (PKI) . The use of PKI as a security safeguard is at the same time reinforced by the availability of an trusted third party (TPP), namely certification authorities. Hong Kong has given effect to the Electronic Transactions Ordinance, which is expected to govern transactions adopting the electronic channels as a means of communications.

Domain Names FAQ

Q: What is the legal significance of the "first-come-first served" registration policy of the domain name registrar such as Network Solutions Inc and Hong Kong Domain Name Registration Limited?
A: In the English authority where pitman.co.uk was the subject of dispute, the "first-come-first-served" registration policy is challenged by Pitman Training Limited. The registrar of .co.uk Nominet NK was sued. The Court ruled that Nominet NK was entitled to allocate domain names based on the "first-come-first-served" policy.

Q: What legal risk relates to the use of domain names?
A: There is a legal risk on using a domain name associated with a famous brand, trade mark or business. Disney and Rolex are examples. A person who adopts a domain name the same as or with likeness to famous brands will highly likely attract litigation on passing-off and trade mark infringement.

Q: Are there any cases being litigated on use of famous brand as domain names?
A: There are a lot of cases on that in America but not too many in England. There is so far none in Hong Kong. In England, Harrods.com, marksandspcxencer.com have been a subject of dispute. In both cases, Harrods and Marks & Spencer managed to "get back" their domain names. The relevant aspects of laws adopted by the Court are trade mark and passing off. As these are common law cases, the decided legal principles are of great use to Hong Kong when advising rights on domain name legally.7

Q: Am I liable of trade mark infringement or passing off if I have adopted the use of domain name associated with a famous mark which I am not aware of its existence?
A: You would still be liable. You are therefore advised to make searches in respect of the trade mark registry before you decide to adopt the domain name. Some marks could have attracted litigation to your surprise. For example, a information company in Washington DC registered the domain name dc.com. Warner Brothers owns the registered trade mark DC COMICS and sued the information company with the objective of "getting back" the domain name..

Besides, Genesis Access Point obtained the domain name thegap.com. The garment shop The Gap Inc. who also owns the registered trade mark of GAP, sued Genesis for trade mark infringement,.

Q: How is my position if I am only a domain name collector of famous brands and I do not use the domain names to a build a homepage.
A: That is legally risky. In the English case of One in a Million, a long history and volumnous act of domain name collection is sufficient to constitute a threat of infringement. In that case, the defendant was ordered by the Court to assign a number of domain names to the Plaintiffs. The domain names included bt.org, marksandspencer.com, labrokes.com.

Q: Should I commence legal action in the Court or complain to the accredited arbitration service provider in a dispute relating to a .hk domain name?
A: It depends what remedies you intent to seek. Judge by the experience in .com disputes, complainants inclined to use ICANN's Uniform Dispute Resolution Policy much more often than using the Court as a venue. The arbitration venue is believed to be of less cost and more speedy. But the Arbitration Panel has no power to order any damages against the registrant.