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A number of good reasons exist, including supply constraints, refusing certain
categories of customers and possible transmission faults, for online merchants to
conform to this present commercial practice and to ensure that their
advertisements, price lists, and preconstructed order forms on the Web are
construed as mere invitations to treat.
To maintain the traditional invitation to treat distinction, online mer-
chants could use simple disclaimers defining the on-line advertisements or
displays as invitations to treat and not offers. However, textual legalese in
cyberspace is often not seen (because it falls outside the viewable window) or
ignored, and here custom and practice is gradually still being set. Therefore,
even though this solution may absolve the merchant of any legal liability, it
does not prevent consumer misunderstandings or disputes. Hence the formal
requirements of legal niceties are satisfied, but the practical and informal
realities are not. To ensure consistency, the disclaimers will need to be
supplemented by
on-line ordering procedures that mimic or are analogous to
those found in the traditional environment.
Acceptance
If the offeree accepts an offer, a contract is formed.
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An acceptance is
an unconditional agreement to the offer presented. It cannot be a message
merely notifying the offeror that the offer has been received (c.f.
acknowledgement), nor can the acceptance attempt to change the contractual
terms (cf. counter offer). Again, just as in the case of an offer, an acceptance can
be communicated using any viable method, as long as it is ‘reasonable’
under
the circumstances. Consequently, if a consumer makes an offer through a Web
site, the merchant (offeree) can validly accept the offer through a variety of
methods, including the following:
Automated acceptance. Under English law, the merchant can automate
the acceptance process.
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Consumers can misconstrue poorly constructed
“thank you for your order”
confirmation Web pages or e-mails as acceptances,
even though none was intended. Again, since the legal liability hinges on