Electronic Contracts: Where We've Come From, Where We Are, and Where We Should Be Going

Abstract

The power and importance of contracts can hardly be overstated. Contracts constitute the legal foundation upon which business is transacted around the globe. A contract can be as informal as buying your morning coffee or as complex as a heavily negotiated multi- party, multinational corporate acquisition. It is also near to impossible to overstate the impact of the rise of the Internet and electronic commerce - the number of people online has surpassed 1.3 billion, and of those, more than 85% have used the Internet to make a purchase.1 My goal is to dig through some of the rubble created as the traditional world of contracts and the new frontier of e-commerce have collided. A good starting point is to know what we're looking for. I will begin with a short description of the essential elements of a contract and general contract law principles. For perspective on how the law of contracts has adapted in the face of modernization and technological advances, I will look to historical milestones such as industrialization and the use of different communication methods and technologies. Making our way to the present, I will provide a brief and selective survey Canadian and U.S. case law dealing primarily with online contracting. A review of international and regional efforts and accomplishments in the areas of legislative harmonization, functional equivalency, and consumer protection will be discussed. Finally, I will offer some thoughts on what is needed to improve upon the practice of electronic contracting for the future.