On the formation of consent in the case of contracts concluded on-line

• Author: Garaiman Daniela
• Pages: 104-110

ON THE FORMATION OF CONSENT IN THE CASE OF CONTRACTS

CONCLUDED ON-LINE

Ph. D.Associate Professor Daniela Gărăiman

Abstract: The trading offer on the Internet, which may be destined to other traders or to

private persons, presents a lot of distinct features. Electronically catalogues, diffused on Internet,

may be seen as such techniques in distance communication. When the trader wishes to sell his

products through Internet, he has to issue an offer, which he releases on-line and which, therefore,

could be accessed by whoever might be connected. The second element of the contract's conclusion

is the unequivocal accept of the offer, because any modification brought to the offer constitutes

itself as a counter-offer.

Key words: trading on Internet, electronically features, tele-communication.

1. On the offer to contract on-line

The trading offer on the Internet, which may be destined to other traders or to private persons,

presents a lot of distinct features. Firstly, it is an offer which transits through an international tele-

communications' resource. There are differences from the traditional contracts, which are concluded

between persons who are all present at the moment of exchanging consents. The on-line contract is

kindred to the contracts negotiated from a distance.

a) The contract at a distance and the offer through Internet. According to art. 2 of the

Government's Ordnance nr. 130/2000, by contract at a distance should be understood the supply

contract, for products or services, concluded between, a trader and a consumer, into the frame of a

sale-purchase system organized by the trader, which makes use of, exclusively, before and at the

exact moment of conclusion of the respective contract, one or many techniques in distance

communication. These are defined as whatever means that could be used as tools for the conclusion

of a contract between the trader and the consumer, which do not require the physical presence of

both sides simultaneously.

Electronically catalogues, diffused on Internet, may be seen as such techniques in distance

communication. When the trader wishes to sell his products through Internet, he has to issue an

offer, which he releases on-line and which, therefore, could be accessed by whoever might be

connected. In this case the offer made at a distance does exist, while the possible sides of the

contract do not meet. Yet trading offer released on-line presents some features of its own, related to

interactivity. These features that we find into interactive telematics are, indeed, distinct from the

classical sales by mail, which use the path of the paper support to spread their offer. Therefore, if

on-line the simultaneous physical presence of the contractors does not exist, according to the

definition itself given to the distanced sale, the net allows, though, a virtual presence, due to

interactivity as a phenomenon. On-line, the offer and its acceptance are able to meet, almost

simultaneously.

b) The on-line offer and the offer through T.V. broadcasts. The T.V. broadcasted

advertising releases are, totally or partially, vowed to present and promote goods or services offered

straight for sale. The T. V. broadcasted offer allowing the viewers to consume when watching T.V.,

may be considered a form of contract negotiated at a distance. The trading offer spread on-line may

be seen as kindred to the T.V. broadcasted one, as both are public communications. Still, on the

opposite of the multimedia offer which is interactive, the acquisition through T.V. broadcasts does

not allow the purchaser to make use of the same mean of communication for issuing his own order.

The viewer and purchaser who wishes to obtain a product advertised by the T.V. broadcast will not

be able to directly transmit his consent through T.V. devices, and will be obliged to make use of

other means of communication.