Contracts

Topics: Contract, Common law, Offer and acceptance Pages: 7 (2144 words) Published: March 31, 2014
Introduction:
The question of whether contract law can absorb technological change without the need for distinctive guidelines, presuppositions or similar rules is highly dependent on the effects of the amendments to the Electronic Transactions Act 2000 (NSW) (“ETA”). The impact of the ETA on traditional common law principles varies depending on the level of certainty and predictability available in the circumstances and how the law applies. The suitable amount of consistency is likely to vary for the purposes of different legal requirements, depending on the contract formation and how the technology responds to the certain demands of the contracting parties. At a theoretical level, what is required to attain additional certainty in the continuously emerging online domain is a system that identifies and acknowledges all contract presuppositions in order for the ETA to respond entirely and absorb technological change in regards to traditional common law principles. Therefore, it is arguable that Eliza Mik’s statement about the impact of the ETA on traditional common law principles of contract law are suitable to a certain extent as through the analysis of the law, it becomes evident that not all avenues of change in regards to technology can be adapted to without the need for special rules, presumptions or parallel regimes. However, the construction of the common law principles of contract law are vast, widespread and cover many aspects that allows for the amendments to the ETA to promote certainty and predictability as the principles of contract law can apply to those contracts formed electronically.

Formation of a Contract – Offer and Acceptance:
Offer and acceptance consideration is the established method implemented in defining whether parties who were considering entering into a contract have in fact accepted beyond the point of conferring and have established an agreement.1 The ordinary rule is that to establish a contract, it is required that there is an offer, an acceptance and communication of that acceptance to the party formulating the offer.2 The fundamental value is that an offer is a manifestation of readiness to contract on the positions and standings specified in the offer.3 An offer converts into a contract only if it is accepted. There are four fundamental principles in relation to the notion of acceptance. The first is that the offeror may specify whatever is required in order for an offer to be accepted.4 The second is that the offer and acceptance need correctly correspond.5 Any effort to introduce different terms is a counter-offer and any parting from terms of the offer will effect in the supposed acceptance becoming unsuccessful excluding when it is accepted as a counter-offer.6 The third key principle is that acceptance may be indirect from the party’s demeanor and need not be direct.7 Finally, the fourth key principle is that only persons to whom the offer is made have the ability to as a result accept that offer.8 The offer and acceptance consideration intends to determine the intent of the parties by interpreting the assertions made or conduct involved during the contracting procedure.9

When analyzing the impact of the ETA on traditional common law principles of contract law, all principles and the applications pertaining to offers and acceptance remain unchanged; it is imperative to identify the technology explicit issues affecting their application. Contract law maintained a limited focus on the impact of electronic means, examining the Internet mostly relative to official necessities such as the legality and enforceability of electronic contracts and jurisdictional concerns. The importance continued on the electronic procedure and the limitless appeal of electronic transactions.

The rudimentary foundations in terms of intention and consideration remain the same. Offers are necessary and can be rescinded before acceptance and acceptance must be transferred within the...

Bibliography: Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 at 268
De Silva, Aldrin, ‘Electronic Transactions Legislation: An Australian Perspective’ (2003) 37 International Lawyer 1009
Carter, John W., Cases and Materials on Contract Law in Australia (LexisNexis Butterworths, 6th ed, 2012)
Manchester Diocesan Council for Education v Commercial and General Investments Ltd [1970] 1 WLR 241 at 245
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