|
As Ian Eagles said that the basic rule to determine when and where the acceptance is effective is the receipt rule and that the postal rule is only a narrow exception. This is true when we take the United Nations Convention on Contracts for the International Sale of Goods into account. The Convention is in force under the Sale of Goods (United Nations Convention) Act 1994. It provides that
for the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention “reaches” the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence.
Apparently the convention adopts the receipt rule and rules out the application of the postal rule when transactions cross the borders unless otherwise agreed by the parties to the contract. According to this principle, the acceptance sent by the offeree by email should reach the email inbox of the offeror and be available to read when the offeror open its inbox. At the moment when the email acceptance reaches the offeror’s inbox the contract is formed. However, the convention does not require that the acceptance be read by the offeror. As a result, businesses should be aware of the different legal consequences between the domestic contracts and international contracts. Since this provision of the Convention is only a default rule, the parties may agree in the contract that the acceptance is effective when it is sent by the offeree.
If the postal rule applies to contracting by email, it is likely that the offeror doesn’t know the time when the contract is binding until it receives the acceptance. If an offeror sends the same offer to more than one offerees, there is a possibility that more than one offerees accept the offer and therefore more than one contract are formed and legally binding in terms of the post rule. Apparently the offeror will be in breach of the contracts. Just because communications via the Internet are convenient, fast and cheap, many businesses intend to take the advantage. They should be aware of the risk hiding behind the efficient emails. A smart offeror won’t send the same offer to a number of offerees at the same time. The practical way is to specify the period of validity of the offer.
If the offeror has several email addresses and one of them is designated for communications with the offeree in the course of contracting and the offeree doesn’t send its acceptance to the designated email address, is the offeror bound by the acceptance? If so, is the post rule still applicable?
The Model Law provides that
if the addressee has designated an information system for the purpose of receiving data messages, receipt occurs:
(ii) if the data message is sent to an information system of the addressee that is not the designated information system, at the time when the data message is retrieved by the addressee.
Although the Model Law doesn’t directly answer this question, it implies that the acceptance sent to the non-designated email address is still effective since it recognises this kind of communication as a one of the methods by which contracts are created. New Zealand Electronic Transaction Bill (ETB) adopts the same approach. It lays down that an electronic communications is regarded to be received when it comes to the attention of the addressee if the originator didn’t send the message to the designated information system.
|
