Lexpert Magazine

LEXPERT MAGAZINE | APRIL/MAY 2017 63 BY GEORGE TAKACH TECHNOLOGY Recent court decision shows that it's the intent to express an offer or acceptance that matters, and not the medium The Lowdown on E-Kiosk Contracts IT'S THE FRIDAY of the May long weekend, and as you have for some 30 years you're driving yourself and the three other members of your law school study group to your annual retreat at a resort up north for some rest, relaxation and reminiscing. Along the way you notice that a new Go-Kart operation has started up, and you are all game to give it a shot. It's easily been 40 years since any of you raced around a Go-Kart track. (What is it about Canadian long weekends that makes us nostalgic?) Given the inherent riskiness of Go-Karting and your three decades in the legal business, you expect a written waiver document to be presented to you to sign before you hit the track. Instead, interest- ingly, you find yourself before a kiosk with a big electronic screen. You have to type in various bits of per- sonal information, pay a fee, be photo- graphed, and click "I Agree" to a waiver and release. A copy of the information, and a receipt for your payment, is then printed for you. You're impressed with the process, but as you put on one of their helmets you wonder, "Is this all as enforceable as the old written release was?" THREE DECADES OF E-CONTRACTS e e-kiosk contracting experiencing is nothing new. For about 30 years, elec- tronic mechanisms of contract formation have been augmenting, and in some cases altogether replacing, the analogous paper- based ones. In the late 1980s, electronic data interchange, or EDI as it was known, rapidly became ubiquitous in the business- to-business sector as the preferred means by which goods were ordered by parties in a supply chain. EDI presented some novel legal issues because it enabled direct com- puter-to-computer communication with- out any human interaction. Facsimile, or fax, technology also raised some novel legal issues, particularly because there were variations of technology on the fax theme. e original fax machine was like a photocopier, except that the copy was scanned and then transmitted. But in this initial model there was a paper-based "original" of the document that typically contained a human being's "wet" signature. As fax technology advanced, the document was sent directly from a computer without a paper version being created. is caused a few legal eyebrows to furrow. More recently, PDF technologies have come into widespread use, and emails are now used routinely to create contractu- ally intentioned messages. e variations on e-contracting never end. Today, some businesses have worked "recorded voice sig- natures" into their contract creation work- flows, especially with remote customers. And getting back to Go-Kart waivers, the use of e-kiosks is on the rise. Generally speaking, common-law courts in Canada and other jurisdictions have not denied contractual effect to electronic mes- sages just because they were electronic. But it's not correct to say that all electronic messages can create legally effective contracts, because there is much more to any contract than the signature of the parties, whether it be in ink or in electronic form. For instance, there still must be a clear offer followed by a clear acceptance. (Remember Contract Law 101 at law school?) erefore, a series of back-and-forth communications by email do not pass contractual muster because the court is unable to discern a clear offer or acceptance from the avalanche of (oen contradictory) messages, multiple offers and the plethora of counter-offers. In other circumstances, the factor that can undermine the finding of a legally binding electronic contract is that the purported terms and conditions were not sufficiently brought to the attention of one of the parties. For example, the coun- terparty may have been simply "invited" to click on the relevant terms, but ulti- mately did not have to in order to proceed with the online transaction. In another string of cases, fax machines automatically printed the sender's name at the top of the fax, but courts found these not to be electronic signatures because they were not placed on the fax with the intent to create a contractual relationship. Again, assent is still a critical requirement in an electronic contracting environment. So, the common law will uphold elec- tronic contracts where there is clear offer and acceptance, both parties intend to en- ter into a contract, and there are no coun- ter-indicating circumstances (e.g., duress, mistake, or age-of-majority concerns). But common law did not alleviate all concerns, and so about 20 years ago a wave of law reform was initiated that resulted in each PHOTO: SHUTTERSTOCK | COLUMNS |

• Cover
• front
• big
• back