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Apart from above statutory provisions, the principle of the contract law requires both the offeror and offeree treat each other in good faith in the ordinary course of contracting. Usually an offer will be open for the offeree for a fixed period and the acceptance will be effective if it is sent within the period. There is no reason that the offeror rejects the acceptance when he or she receives it within the specified days because there is nothing against the offeror’s interests and conversely that is what the offeror intends to obtain.
Therefore, the claim of ruling out the effectiveness of the acceptance when the offeror receives it from the non-designated email address can’t be justified. However, if the offeror clearly states that the acceptance should be communicated by a particular means and by that means only, it will constitute a mandatory term in the offer. In this circumstance, the offeree can not be free to choose any other method otherwise it will fundamentally alter the term of the offer and it thus doesn’t constitute an acceptance .
The American approach is different from the Model Law and New Zealand ETB. There are no similar provisions governing this issue in the Uniform Electronic Transactions Act 1999 (UETA). In fact, the National Conference of Commissioners on Uniform State Laws does not agree that the acceptance is effective when the message is sent by the offeree to the non-designated email address of the offeror.
To assure that the recipient retains control of the place of receipt, subsection (b) requires that the system be specified or used by the recipient, and that the system be used or designated for the type of record being sent. Many people have multiple e-mail addresses for different purposes. Subsection (b) assures that recipients can designate the e-mail address or system to be used in a particular transaction. For example, the recipient retains the ability to designate a home e-mail for personal matters, work e-mail for official business, or a separate organizational e-mail solely for the business purposes of that organization. If A sends B a notice at his home which relates to business, it may not be deemed received if B designated his business address as the sole address for business purposes. Whether actual knowledge upon seeing it at home would qualify as receipt is determined under the otherwise applicable substantive law.
The next question is whether the postal rule is still applicable to this situation. As this paper discussed above, one of the reasons to apply the post rule is to achieve fair risk allocation. However, If the offeree sends the acceptance to a non-designated email address, although the non-designated email address belongs to the offeror, the offeror has not any obligation to the offeree to check its other email addresses regularly as it should do to the designated email address. In this circumstance, it is not fair if the offeror still assumes the risk of non-delivery caused by the offeree’s negligence. Therefore, the postal rule must not apply to this particular situation. New Zealand’s approach seems more persuasive.
Since the acceptance is effective when it is sent by the offeree, the contract is formed in the offeree’s jurisdiction. If this is the case, it won’t be desirable for businesses. They have to face numerous jurisdictions when disputes arise. However, it is only a default rule and business may incorporate a clause of agreed jurisdiction into the offer.
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