EU-China Workshop on the Regulation of Online Business

EU-China Workshop on the Regulation of Online Business and Related Services 5. Presentation: Contract Closing IPR 2 Project Quanzhou City, June 11, 2009 HARDER RECHTSANWÄLTE Munich

Legal Transactions are based on Declarations of Intent • Power of Attorney • Approval • Notice of cancellation Unilateral Declaration of Intent • Contract • Resolution Bilateral Declaration of Intent (Company Law) In principle, there is no formal requirement! HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 2

A contract will be closed by two coincident Declarations of Intent Customer: 2 I would like. . . You may have. . . Dealer: 1 3 Offer (= Shop window is Invitation Declaration of Intent) to make an offer Acceptance (= Declaration of Intent) HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 3

Customer: The same procedure applies to online contracting Online Dealer: Dealer`s Homepage I would like. . . Step 1 Homepage • Dealer: Dealer`s homepage is an invitation to make an offer You may have. . . i. Pod Step 2 Extra Step 4 Step 5 Accept. GTC Accept. Offer • Customer: • Dealer: Presents General • Customer: Makes offer by Terms and Conditions Accepts GTC mouse-clicking 2 functions of GTC: purchase option 1. dealer‘s conditions • Dealer: Accepts offer Offer Extra Step 3 GTC 2. Distance contracts Informations HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 4

The Need for security is increasing in legal relations More than 90 % of all legally relevant actions are valid even without any formal requirement! . . . unfortunately they are often incapable of proof HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 5

The Law on formal regulations from 13. 07. 2001 adresses the electronic signature § 126 a Civil Code (1) If electronic form is to replace the written form prescribed by law the issues of the declaration must add his name to it and provide the electronic document with a qualified electronic signature in accordance with the Electronic Signature Act (Signaturgesetz). (2) In the case of a contract, the parties must each provide a counterpart with an Electronic Signature as described in subsection (1). § HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 6

Electronic Signatures are available in different Quality (1) security Electronic signature • Data in electronic form, that are attached to other electronic data or logically linked to them and that are used for authentication. • Little evidentiary value effort HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 7

Electronic Signatures are available in different Quality (2) security • Exclusivly dedicated to the owner of the electronic key for signature advanced electronic signature • Allows the Identification of the owner of the electronic key • Created with tools that are unter the sole control of the owner of the eletronic key • Linked with the data they are related to in a manner that enables to recognise any subsequent manipulation of the Data • Similar to PGP effort HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 8

Electronic Signatures are available in different Quality (3) security Qualified electronic signature • In addition to the advanced electronic signature: advanced electronic signature - based on a qualified certificate valid at the time of creation - created by a secure signature generating unit electronic signature • Legal equivalence with handwritten signature effort HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 9

Electronic Signatures are available in different Quality (4) security Qualified electronic signature with Accreditation of provider advanced electronic signature • Qualified electronic signature created by a trust center that has been accreditated by the responsible authority electronic signature (Intention of the EU: Accreditation may be voluntarily!) effort HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 10

The functioning of the electronic signature with the asymmetric procedure Trust Center Document Adressee B User A Identification Dokument issues a certificate Authentication Private Key A Hash. Algorithm Hashvalue matching Electr. signature; attached to the document Decoding signed Calculation of the Hash value hashvalue + of the document Public Key A HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 11

Issue: How to control activities of minors (7 to 17 years old) as the contract is void if there is no approval by the representative § 110 Civil Code A contract entered by the minor without approval ot the legal representative is deemed effective from the beginning if the minor effects performance under the contract with means that were given to him for this purpose of for free disposal by the legal representative or by a third party with the ratification of the representative. § HARDER Bernd H. Harder 06/11/09 RECHTSANWÄLTE Munich Seite: 12

Lots of Restrictions for the design of the Terms and Conditions due the AGB-Law § 305 Civil Code (1) (2) (3) § Standard business terms are all contractual terms pre-established for a multitude of contracts which one party to the contract (the user) presents to the other party upon the conclusion of the contract. It is irrelevant whether the provisions appear as a separate part of a contract or are included in the contractual document itself, how extensive they are, what script is used for them, or what form the contract takes. Contractual terms do not constitute standard business terms where they have been individually negotiated between the parties. Standard business terms are incorporated into the contract only if, during the conclusion of the contract, the user 1. expressly draws the other party’s attention to them, or if, on account of the way in which the contract is concluded, an express reference to them is unreasonably difficult, he draws his attention to them by means of a clearly visible sign at the place where the contract is concluded and 2. gives the other party, in a reasonable manner that also appropriately takes account of any physical handicap of the other party discernible by the user, the possibility of gaining knowledge of their content, and if the other party agrees that they are to apply. Subject to observance of the requirements set out in subsection (2) above, the parties may agree in advance that particular standard business terms will apply to a particular type of legal transaction. Bernd H. Harder 06/11/09 HARDER RECHTSANWÄLTE Munich Seite: 13

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