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E-Commerce Act Query

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  • 07-01-2009 1:36pm
    #1
    jamieh
    Registered Users Posts: 2,073 ✭✭✭


    Hi all,

    Does anyone hear have knowledge on the E-Commerce act?

    I'm trying to find out if electronic non-disclosure agreements are legally binding in Ireland and/or internationally?


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    #2
    sh_o
    Closed Accounts Posts: 198 ✭✭sh_o


    jamieh wrote: »
    I'm trying to find out if electronic non-disclosure agreements are legally binding in Ireland and/or internationally?

    The fact that the nda agreement is concluded electronically does not change its validity:
    Electronic Commerce Act, 2000 Section 19:
    19.—(1) An electronic contract shall not be denied legal effect,
    validity or enforceability solely on the grounds that it is wholly or
    partly in electronic form, or has been concluded wholly or partly by
    way of an electronic communication.
    (2) In the formation of a contract, an offer, acceptance of an offer
    or any related communication (including any subsequent amendment,
    cancellation or revocation of the offer or acceptance of the
    offer) may, unless otherwise agreed by the parties, be communicated
    by means of an electronic communication.

    The agreement may however fail for any number of other reasons.


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    #3
    jamieh
    Registered Users Posts: 2,073 ✭✭✭jamieh


    sh_o wrote: »
    The fact that the nda agreement is concluded electronically does not change its validity:
    Electronic Commerce Act, 2000 Section 19:
    19.—(1) An electronic contract shall not be denied legal effect,
    validity or enforceability solely on the grounds that it is wholly or
    partly in electronic form, or has been concluded wholly or partly by
    way of an electronic communication.
    (2) In the formation of a contract, an offer, acceptance of an offer
    or any related communication (including any subsequent amendment,
    cancellation or revocation of the offer or acceptance of the
    offer) may, unless otherwise agreed by the parties, be communicated
    by means of an electronic communication.

    The agreement may however fail for any number of other reasons.

    Thanks for the reply sh_o.

    Could you expand on the reasons it might fail?


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    #4
    dermot_sheehan
    Closed Accounts Posts: 2,062 ✭✭✭dermot_sheehan


    Lack of consideration

    Illegality

    Unreasonable restraint on trade

    Lack of Legal capacity to make the contract

    fundamental breach on one party that creates a right to rescind for the other party

    Basically the ordinary reasons a contract might be unenforceable.


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    #5
    jamieh
    Registered Users Posts: 2,073 ✭✭✭jamieh


    gabhain7 wrote: »
    Lack of consideration

    Illegality

    Unreasonable restraint on trade

    Lack of Legal capacity to make the contract

    fundamental breach on one party that creates a right to rescind for the other party

    Basically the ordinary reasons a contract might be unenforceable.

    So there's no technical reasons it could fail?

    Also, if someone from another country agrees to an online NDA on an Irish site, does the E-Commerce Act still come into play?


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    #6
    dermot_sheehan
    Closed Accounts Posts: 2,062 ✭✭✭dermot_sheehan


    Absent a choice of law provision in the contract, the place where the acceptance is received is where the contract is made and the law that controls.

    If the e-commerce act wasn't on the books there would be problems in enforcing an electronic NDA as contracts which impose an obligation to be performed later then within a year must be made or evidenced in writing (Statute of Frauds 1595)


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    #7
    Victor
    Registered Users Posts: 78,333 ✭✭✭✭Victor


    jamieh wrote: »
    Also, if someone from another country agrees to an online NDA on an Irish site, does the E-Commerce Act still come into play?
    "Well, what does the contract say?" is how I normally respond to such questions. The contract might say that the contract is subject to the laws and courts of Ireland and that would be rather persuasive. However, if the organisation was legally based in another jurisdiction and was selling into that jurisdiction (as opposed to the consumer going out of their way to buy of the wrong website, for example) and depending on the laws of that other jurisdiction, then well that other law might be binding and that part of the contract void.

    That said NDAs tend to be B2B or employer-employee based, so that might not be a good example.


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    #8
    Duffman
    Closed Accounts Posts: 1,248 ✭✭✭Duffman


    jamieh wrote: »
    So there's no technical reasons it could fail?

    Also, if someone from another country agrees to an online NDA on an Irish site, does the E-Commerce Act still come into play?

    Assuming for a minute that your NDA would be binding (and we need more info to advise on that properly), you need to consider the practicalities of actually pursuing anyone who breaks it.

    Sure you can sue them, but this won't be any use unless you can enforce any judgment against them. If they are based in the EU this is easy. If not, you are unlikely to be able to do anything about it.

    It's important to think about these kinds of issues when you are doing business online. There is more to consider than your strict legal position.


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