The Problems with Modern Methods of Communication in Law

A brief couple of pages on the directives and cases that show the problems of modern forms of communication within the law

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  • Created on: 03-11-11 10:44
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The Problem with Modern Methods of Communication
Entores ltd v Miles Far East Corporation 1955
In this case, the postal rule didn't apply. Entores sent an offer to Miles through telex for the
purchase of a product based in an Amsterdam company. Miles sent a reply, accepting the offer,
through telex. The issue was where was the contract formed? As it was sent through telex, the
moment of acceptance was deemed to be when the message was read in London, so the contract
was formed in London and was under English jurisdiction.
Brinkibon ltd v Stahag Stahl 1983
An acceptance was sent telex out of hours. The House of Lords held that a telex message that was
sent outside office hours should not be considered to be an instantaneous means of
communication and therefore acceptance could only be effective when the office reopened.
The postal rule did not apply in this case or to direct or instant forms of communication. Brinkibon
sent their acceptance to a Stahag offer by Telex to Vienna. The issue here was also where the
contract was formed. Judgement was that the contract was formed in Vienna where the telex was
received.
EU Directive 97/7, the Distance Selling Directive The Consumer Protection (Distance
Selling) Regulation 2000
the Directive applies to contracts that are formed by any kind of communication which do not
require the parties to be physically present (not face to face).
These kinds of contracts are excluded from the Directive:
- contracts relating to the financial services referred to in Annex II
- contracts between a person and an automatic vending machines
- contracts made with operators through the use of public phone boxes
- contracts concerning immobile property (except for rental)
- contracts made at an auction
Before the contract is concluded, the consumer must be provided with clear information on:
- Description of goods/services and prices
- The identity and address of supplier
- Delivery costs
- The right to withdraw (7 working days to withdraw from contract without penalty if supplier
has provided the correct information, if not then the withdrawal period increases to 3
months)
- Arrangements of payment/delivery/performance of service
- Cost of using distance communication
- Duration of contract
- Time length of offer
Consumer must also receive a written confirmation, either in writing or by email, claiming:
- how to withdraw
- how to complain
- conditions under which the contract can be cancelled
- information on aftersales
The Electronic Commerce Directive 2000 (Article 11)
Article 11 Placing of the order
1. When using technology and someone places an order, the following rules apply:
i) the service provider has to acknowledge the receipt of the person's order without undue delay
and by electronic means
ii) the order and the acknowledgement of receipt are deemed to be received when the parties to
whom they are addressed are able to access them.

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Prior to the placing of an order, the service provider must ensure that the recipient of the service
has effective and accessible technical means allowing him to adjust any errors.
3. Paragraph 1 (I) and 2 do not apply to contracts formed by exchange of email or by equivalent
communications.…read more

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