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Unpublished Paper
FUTURE STRATEGIES FOR IMPROVING CONSENT IN ELECTRONIC CONTRACTING
ExpressO (2015)
  • Ran Bi
Abstract

China's economy has been running deep into an exciting phrase called “Internet +”. In North America, most businesses have online presence and conduct numerous transactions online. Unprecedentedly, electronic contracts have been governing more Individuals and corporations’ legal relationships in a growing proportion of businesses and everyday life.

E-contracts, usually with no physical architecture, are easy to “sign”—people just click one or two icons on a computer / smartphone screen after “reading” (scroll down) the contents. However, e-contracts are standard form contracts which are provided by vendors1. Users2 are easy to become victims of exploitative terms, because their consent has been obtained by the vendors in the e-contracting process. Through analysis on well-known cases and examples in Canada and China (Kanitz v. Rogers Cable Inc., Taobao Riot, Rudder v. Microsoft Corp., JingDong Mall v. Xuchun Wang, etc.), it shows that people’s “consent” on exploitative term like forum selection clause is merely an innocent click on a whole bunch of terms mainly for proceeding with the online transaction—if you want a modern life with Internet, you have to close your eyes and “agree” to those sophisticated terms. Moreover, the signed contracts can later be unilaterally manipulated by vendors because an amendment clause has made users gave long-term, broad and automatic consent to future changes. As a result, all the unfair clauses along with assent can be used by vendors as evidence against users in litigation. It is hard to regard this kind of consent as adequate when entering into contractual relationship.

After referring to Canada and China’s related laws, regulations, literature and the 15 strategies of the Electronic Commerce Subcommittee of the American Bar Association, Wikipedia’s effort and other approaches, the paper dedicates itself to these suggestions: (i) to establish an important-term list among e-terms by contract law legislation to protect the certainty of core interests from being unilaterally changed; (ii) to replace the one-sided amending and adequate notification regime with online amendment with users’ participation or a multi-participant hearing; and (iii) to adopt separate, one-to-one checkboxes for those important Commercial terms and Legal terms in online contracting process instead of the non-negotiable Yes / No mode. Finally, a workable example of how to manifest adequate consent on inserting a forum selection clause into e-contracts will be provided.

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1 This paper uses “vendors”, “companies” or “corporations” to indicate economic entities doing business online.

2 This paper uses “user” to indicate the receiver of the vendor’s e-contract most of the time, because a user could be an online merchant, but sometimes the paper uses “consumer” instead, especially when discussing consumer agreement.

Keywords
  • Electronic Contract,
  • Consent,
  • Canada and China,
  • Standard Form Contract,
  • Online Amendment,
  • Contracting Process
Publication Date
September 9, 2015
Citation Information
Ran Bi. "FUTURE STRATEGIES FOR IMPROVING CONSENT IN ELECTRONIC CONTRACTING" ExpressO (2015)
Available at: http://works.bepress.com/ran_bi/1/