Private Law Theory

ABSTRACT
How do online communication technologies and the pervasive deployment of computer programs in the transacting process affect the principles of contract formation? To what extent do new technologies require new law or, at least, a drastic change in the application of legal principles. Earlier editions of this book predicted that future editions would not require a separate chapter concerning problems of online contract formation. It was assumed that once Internet-based methods of communication became assimilated into mainstream commercial practice, any mention of the technological challenges (assuming any were left) inherent in the new transacting environment would be relegated to footnotes. These predictions turned out to be largely inaccurate. Although online methods of communication – or technology in general – have become integrated into our daily lives, a separate chapter is still needed. The reasons are two-fold. First, contract law lies at the heart of e-commerce, ie, the ‘use of digital systems to create/perform commercial transactions.’ Irrespective of the business model and type of contractual subject matter, all on-line transactions rely on the same principles of contract formation. As long as various technologies assist humans in forming contracts, the legal idiosyncrasies of the resulting transactions must be addressed. Second, due to recent pandemic, even more commerce and more activities have shifted online. People go online not only to communicate or shop but to socialize and to consume media content. As the companies providing such content and services are set up for commercial purposes, an increasing number of online interactions are (or purport to be) governed by contract. The growth of online commerce is also accompanied by an increased reliance on technologies that not only assist in communicating intention but automate the entire contract formation process.

Mik, Eliza, Contracts Formed Online and ‘by’ Computers (June 15, 2023) in Furmston and Tolhurst on Contract Formation: Law and Practice, 3rd edition (Oxford University Press, 2023); The Chinese University of Hong Kong Faculty of Law Research Paper No 2024-11.