Formation du contrat électronique : L’acceptation entre mutations et orthodoxie

2015
Volume 46, No 1
Serge Kablan and Édouard Onguene Onana

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Abstract

Doctrine has often debated the nature of cyberspace law; specifically, what type of rules must frame electronic transactions. The formation of the electronic B2B and B2C contract allows for engagement with this debate from a practical perspective, setting two options before the legislator: one that encourages the creation of conventional rules, given the presumed specificity of these contracts; the other, tending to favour the existing law, eventually adapted. The formalism of recent legislative initiatives, notably those in cyber-consumer law, reaffirms the central role of consent in contract formation with the renewal of the traditional operations of offer and acceptance. In cyberspace, the forms of expressing these two operations benefits from more or less specific practical signposts, possibly to avoid essential rules in this area too quickly becoming obsolete in a technological context in perpetual transformation. This hesitation, possibly this choice, has led to the emergence of multiple forms of expression of acceptance, the validity of which is not understood in a mechanical way, but that frequently remains dependant on judicial discretion. By examining the progressively developed reasoning of tribunals in common law and civil law jurisdictions, as well as scholarly work, the authors observe a constant, an unchanging criterion for the evaluation of the ritual of online acceptance. This analysis goes beyond techniques borne out of practice, such as “Box-Top”, “Shrink-Wrap”, “Browse-Wrap”, “Click- Wrap”, “Hybrid Click-Wrap”, “Hyperwrap”, and attempts to define and to limit the scope of this value, this criterion that inspires a return to the foundations of contract law. Finally, we propose the use of pictograms to implement this criterion.

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