All entries for December 2010
December 31, 2010
Like I promised, my European Contract Law presentation on debt and whether they ought to be considered as a contract or property.
I'm sorry, but due to some technical difficulties I wasn't able to combine the music track with the actual PPT presentation, but you'll get the idea by watching and listening simultaneously.
So, have fun.
Hi guys…tears, tears…this my last blog entry for this year and on contract law.
But I won’t leave without telling you a tale of hope and endurance.
After my heartbreaking comment last week on how I deem the postal rule obsolete in our modern e-commerce influenced times.
And in this dark hour, along comes a little journal (The Postal Acceptance Rule in the Digital Age, Journal of International Commercial Law and Technology, Vol.2,Issue 1) that should be a reason for celebration as there is one last domain where the postal rule could remain relevant for years to come, assuming that no significant changes in how we contract emerge in the near future, which, given the rapid technological changes in the digital industry, could become tricky.
Nonetheless, let’s analyse in what ways or on what level the postal rule might still apply in future times.
The article revolves around how the postal is applicable for e-mail communication as the traditional postal rule principle established in1818 by Adams v. Lindsell cannot be transferred identically onto contracts concluded through e-mail communication.
The main issue with e-mail communication is to determine whether or not it should be considered an instantaneous form of communication or not as this would solve this problem rather quickly.
But this is exactly the more delicate part of this analysis, given that e-mail is mixture between traditional mail and instant messaging.
One thing that can be considered without a doubt, that e-mail is not an instantaneous form of communication such as telex or telephone because it can happen that between the sending and receipt of an e-mail lie sometimes several minutes, depending on numerous factors for example internet server speed.
This brings me to the conclusion, that e-mail contracting is closer to traditional mail because the only aspect that is completely controllable is the time of the sending of an e-mail, which means that an offeree who sends his acceptance to the right e-mail address of the offeror should be treated the same way as a person who would’ve sent his acceptance by post. Therefore this “may be the last bastion for the application” of the postal rule, even though most modern online contracts exclude its application beforehand.
So guys this is it…but look out for occasional new entries, for example a PowerPoint presentation on debt or my thesis on the evolution of electronic contract.
December 30, 2010
I’m back…ok…sorry it has been indeed a very, very long week since I’ve last been in contact with. Therefore I’m not going to hold a speech and get straight to the issue I started addressing last time, the slow decay of the postal rule in the modern trade environment within the EU.
Why do I concentrate on this particular point while I could speak about so many other interesting topics concerning contract law in the major EU member states.
Because the contractual landscape within the EU is changing rapidly, England included which means that certain specific forms of contractual rules, such as the postal rule, will, in my humble opinion will in the long run become obsolete and eventually vanish entirely.
What brings me to this preposterous hypothesis you might ask legitimately, well e-commerce and electronic contacting, it’s as simple as that.
Given the fact that e-commerce has been constantly gaining ground over retail commerce or more traditional forms of distance selling for example television shopping or catalogue orders, where the potential buyer replied to an offer by either mailing his order by normal post or by phoning in and placing an order.
This meant that either the postal rule applied or was not applicable as phone acceptances were given directly and thus were immediate without delay.
The latter already contributed a bit to the falling importance of the postal rule.
The appearance of e-commerce then marginalized the postal rule to a degree never seen before.
Already almost completely banned from modern trade and business contracts due to its inconvenient nature, it became practically non-existent in electronic contracting.
If nowadays you are visiting online retailers or auctioneers, you will be asked to accept an offer straight away, this means that there is no physical delay between offer and acceptance.
After this depressing story for postal rule enthusiasts, next week I present the probably last stronghold for the postal rule in our modern digitalized world, so stay tuned.