Diverging Perspectives on Electronic Contracting in the U.S. And the E.U.

Abstract:     
Electronic Contracting - understood broadly to include both the Internet downloading of free or purchased software and the use of rolling contracts (shrink-wrap or terms in the box) in the sale of computers or the lease of software - has raised problems, based in part on the novelty of the transactional forms, and in part on the now-standard issue of unread terms in standardized contracts. This article, part of a conference relating to the legal regulation of new property and new technologies, offers an overview of the distinctly different approaches to Electronic Contracting of the U.S. and the European Union. The American legal system has tried, at times awkwardly, to fit the new transactions into existing doctrinal categories, leaving protection of consumers primarily to market mechanisms. The E.U. has responded through significant governmental intervention, at least for consumer contracts: expressing requiring some terms in consumer transactions, while prohibiting many others.

Keywords: contract law, european union law, rolling contracts, unfair contract terms directive, distance selling directive, shrink wrap, browse wrap, UCITA

JEL Classifications: K12

Accepted Paper Series