1 The Convention on the Use of Electronic Communication in International Contracts was drafted by Working Group IV of UNCITRAL. The Working Group began work on the Convention in March 2002, and the Working Group completed its work in October 2004. The Convention was approved by the Plenary Session of the United Nations Commission on International Trade Law in July 2005, and was approved by the General Assembly in the fall of 2005.

2 Article 1. Scope of application

This Convention applies to the use of electronic communications in connection with the formation or performance of a contract between parties whose places of business are in different States.

3 Article 6 provides:

1. For the purposes of this Convention, a party’s place of business is

presumed to be the location indicated by that party, unless another party

demonstrates that the party making the indication does not have a place of business

at that location.

2. If a party has not indicated a place of business and has more than one

place of business, then, subject to paragraph 1 of this article, the place of business

for the purposes of this Convention is that which has the closest relationship to therelevant contract, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract.

3. If a natural person does not have a place of business, reference is to be

made to the person’s habitual residence.

4. A location is not a place of business merely because that is: (a) where

equipment and technology supporting an information system used by a party in

connection with the formation of a contract are located; or (b) where the

information system may be accessed by other parties.

5. The sole fact that a party makes use of a domain name or electronic mail

address connected to a specific country does not create a presumption that its place

of business is located in that country.

Article 1 (2) provides:

If a party has not indicated a place of business and has more than one

place of business, then, subject to paragraph 1 of this article, the place of business

for the purposes of this Convention is that which has the closest relationship to the

relevant contract, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract.

Article 1 (3) provides:

Neither the nationality of the parties nor the civil or commercial

character of the parties or of the contract is to be taken into consideration in

determining the application of this Convention.

4 Article 15 provides:

The Secretary-General of the United Nations is hereby designated as the depositary for this Convention.

5 Article 16 provides:

1. This Convention is open for signature by all States at the United nations Headquarters in New York from [ …] to [ …]. 2. This Convention is subject to ratification, acceptance or approval by the signatory states. 3. This Convention is open for accession by all States which are not signatory States as from the date it is open fro signature. 4. Instruments of ratification , acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations.

6 Article 23 provides:

1. This Convention enters into force on the first day of the month following the expiration of six months after the date of deposit of the third instrument of ratification, acceptance, approval or accession.

2. When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the third instrument of ratification, acceptance, approval or accession, this Convention enters into force in respect of that State on the first day of the month following the expiration of six months after the date of the deposit of the instrument of ratification, acceptance, approval or accession.

7 Article 24 provides:

This Convention and any declaration apply only to electronic communications that are made after the date when the Convention or the declaration enters into force or takes effect in respect of each Contracting State.

8 Article 19 provides:

1. Any State may declare, in accordance with article 21, that it will apply this Convention only:

(a) When the States referred to in article 1, paragraph 1, are Contracting

States to this Convention; or

(b) When the rules of private international law lead to the application of the law of a Contracting State.

2. Any State may exclude from the scope of application of this Convention

the matters it specifies in a declaration made in accordance with article 21.

Article 21 provides:

1. Declarations under article 17, paragraph 4, article 19, paragraphs 1 and 2 and article 20, paragraphs 2, 3 and 4 may be made at any time. Declarations made at the time of signature are subject to confirmation upon ratification, acceptance or approval.

2. Declarations and their confirmations are to be in writing and be formally notified to the depositary.

3. A declaration takes effect simultaneously with the entry into force of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the first day of the month following the expiration of six months after the dates of its receipt by the depositary.

4. Any State which makes a declaration under this Convention may modify or withdraw it at any time by a formal notification in writing addressed to the depositary. The modification or withdrawal is to take effect on the first day of the month following the expiration of six months after the dates of the receipt of the notification by the depositary.

9 Article 25 provides:

1. A Contracting State may denounce this Convention by a formal notification in writing addressed to the depositary.

2. The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.

10 Article 17 provides:

1. A regional economic integration organization which is constituted by sovereign States and has competence over certain matters governed by this Convention may similarly sign, ratify, accept, approve or accede to this Convention. The regional economic integration organization shall in that case have the rights and obligations of a Contracting State, to the extent that that organization has competence over matters governed by this Convention, the economic integration organization shall not count as a Contracting State in addition to its member states which are Contracting States. 2. The regional economic integration organization shall, at the time of signatures, ratification, acceptance, approval or accession, make a declaration to the depositary specifying the maters governed by this Convention in respect of which competence has been transferred to that organization by its member States. The regional economic integration organization shall promptly notify the depositary of any changes to the distributions of competence, including new transfers of competence, specified in the declaration under this paragraph. 3. Any references to a “contracting State” of “Contracting States” in this Convention applies equally to a regional economic integration organization where the context so requires. 4. This Convention shall not prevail over any conflicting rules of any regional economic integration organization as applicable to parties whose respective places of business are located in member States of any such organization, as set out by declaration in accordance with Article 21.

Article 18 provides:

1. If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all territorial units or to only one or ore of them, and may amend its declaration by submitting another declaration at any time. 2. These declarations are to be notified to the depositary and are to state expressly the territorial units which the Convention applies. 3. If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units of a Contracting State, and if the place of business of a party is located in that State, this place of business, for the purposes of this Convention, is considered not to be a Contracting State, unless it is a territorial unit to which the Convention applies. 4. If a Contracting State makes no declaration under paragraph 1 of this article, the Convention is to extend to al territorial units of that State.

11 Article 20 provides:

1. The provisions of this Convention apply to the use of electronic

Communications in connection with the formation or performance of a contract to which any of the following international conventions, to which a Contracting State to this Convention is or may become a Contracting State, apply:

Convention on the Recognition and Enforcement of Foreign Arbitral Awards

(New York, 10 June 1958);

Convention on the Limitation Period in the International Sale of Goods (New

York, 14 June 1974) and Protocol thereto (Vienna, 11 April 1980);

United Nations Convention on Contracts for the International Sale of Goods

(Vienna, 11 April 1980);

United Nations Convention on the Liability of Operators of Transport

Terminals in International Trade (Vienna, 19 April 1991);

United Nations Convention on Independent Guarantees and Stand-by Letters

of Credit (New York, 11 December 1995);

United Nations Convention on the Assignment of Receivables in International

Trade (New York, 12 December 2001).

2. The provisions of this Convention apply further to electronic communications in connection with the formation or performance of a contract to which another international convention, treaty or agreement not specifically referred to in paragraph 1 of this article, and to which a Contracting State to this Convention is or may become a Contracting State, applies, unless the State has declared, in accordance with article 21, that it will not be bound by this paragraph.

3. A State that makes a declaration pursuant to paragraph 2 of this article may also declare that it will nevertheless apply the provisions of this Convention to the use of electronic communications in connection with the formation or performance of any contract to which a specified international convention, treaty or agreement applies to which the State is or may become a Contracting State.

4.Any State may declare that it will not apply he provisions of this Convention to the use of electronic communications I the connection to the formation or performance of a contract to which any international convention, treaty or agreement specified in the State’s declaration, to which the State is or may become a Contracting State, applies, including any of the conventions referred to in paragraph 1 of this article, even if such State has not excluded the application of paragraph 2 of this article by a declaration in accordance with article 21.

12 Article 4(b) provides that:

“Electronic communication” means any communication that the parties

make by means of data messages

Article 4(c) provides that:

“Data message” means information generated, sent, received or stored by

electronic, magnetic, optical or similar means including, but not limited to,

electronic data interchange (EDI), electronic mail, telegram, telex or telecopy

13 UETA Section 2 (7) provides:

“Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.

14 Article 2(a) of the UNICTRAL Model Law on Electronic Commerce provides:

"Data message" means information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy

15 UETA section 2(16).

16 There was some debate on whether the term “agreement” should be used instead of “contract” so as to make sure arbitration agreements are covered. In the end, the Working Group agreed on the term “contract” with the understanding that the Secretariat would put in the commentary that arbitration agreements are covered by the Convention.

17 Article 2 provides:

1. This Convention does not apply to electronic communications relating to

any of the following:

(a) Contracts concluded for personal, family or household purposes;

(b) (i) Transactions on a regulated exchange; (ii) foreign exchange

transactions; (iii) inter-bank payment systems, inter-bank payment agreements or

clearance and settlement systems relating to securities or other financial assets or

instruments; (iv) the transfer of security rights in sale, loan or holding of or

agreement to repurchase securities or other financial assets or instruments held with

an intermediary.

2. This Convention does not apply to bills of exchange, promissory notes,

consignment notes, bills of lading, warehouse receipts or any transferable document

or instrument that entitles the bearer or beneficiary to claim the delivery of goods or

the payment of a sum of money.

18 The Convention has no requirement that the parties denote that the transaction is a consumer transaction, and in many internet transactions, it may not be obvious to one party that the transaction is a consumer transaction.

19 There is the possibility that the parties may get swept up into the consumer provisions of E-Sign which would not otherwise be applicable under the Convention. The relationship between E-Sign and the Convention is beyond the scope of this paper.

20 UETA section 5(d).

21 Article 4 provides:

For the purposes of this Convention:

(a) “Communication” means any statement, declaration, demand, notice or

request, including an offer and the acceptance of an offer, that the parties are

required to make or choose to make in connection with the formation or

performance of a contract;

(b) “Electronic communication” means any communication that the parties

make by means of data messages;

(c) “Data message” means information generated, sent, received or stored by

electronic, magnetic, optical or similar means including, but not limited to,

electronic data interchange (EDI), electronic mail, telegram, telex or telecopy;

(d) “Originator” of an electronic communication means a party by whom, or

on whose behalf, the electronic communication has been sent or generated prior to

storage, if any, but it does not include a party acting as an intermediary with respect

to that electronic communication;

(e) “Addressee” of an electronic communication means a party who is

intended by the originator to receive the electronic communication, but does not

include a party acting as an intermediary with respect to that electronic

communication;

(f) “Information system” means a system for generating, sending, receiving,

storing or otherwise processing data messages;

(g) “Automated message system” means a computer program or an

electronic or other automated means used to initiate an action or respond to data

messages or performances in whole or in part, without review or intervention by a

person each time an action is initiated or a response is generated by the system;

(h) “Place of business” means any place where a party maintains a nontransitory

establishment to pursue an economic activity other than the temporary

provision of goods or services out of a specific location.

22 Article 1 of the Convention.

23 UETA is also concerned with electronic signatures. Since the Convention does not cover electronic signatures, there is no basis for comparing definitions or concepts of electronic signatures between the two.

24 Article 4(c) of the Convention.

25 UETA section 4(7).

26 Article 4(f) in the Convention.

27 UETA section 2(11).

28 Article 4(g) in the Convention.

29 UETA section 2(2).

30 Article 4(d) in the Convention.

31 Article 4(e) in the Convention.

32 Article 5 provides:

1. In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

2. Questions concerning matters governed by this Convention which are not

expressly settled in it are to be settled in conformity with the general principles on

which it is based or, in the absence of such principles, in conformity with the law

applicable by virtue of the rules of private international law.

This is the same language, for example, as in Article 7 of the United Nations Convention on Contracts for the International Sale of Goods.

33 UETA section 6 provides:

This [Act] must be

construed and applied:

(1) to facilitate electronic transactions consistent with other applicable law;

(2) to be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices; and

(3) to effectuate its general purpose to make uniform the law with respect to the subject of this [Act] among States enacting it.

34 United Nations Convention on Contracts for the International Sale of Goods, article 7.

35 However, it has long been noted that American courts have ignored this distinction when interpreting the CISG, and they have relied too heavily on the UCC to interpret the CISG. This specific point was noted in the prefatory note to the Amendments to UCC. Article 2:

The major fear of the drafters is the possibility of an inappropriate use of cases decided under one law to interpret provisions of the other law. This type of interpretation is contrary to the mandate of the both Article 2 as well as the CISG. Specifically, Section 1-103(b) directs courts to interpret the Uniform Commercial Code in light of its common law history. This principle was an underlying principle in original Article 2, and these amendments are not intended to change this in any way. On the other hand, the CISG specifically directs courts to interpret its provisions in light of international practice with the goal of achieving international uniformity. See CISG art. 7. This approach specifically eschews the use of domestic law, such as Article 2 as a basis for interpretation.

36 Article 7 of the Convention provides:

Nothing in this Convention affects the application of any rule of law that may

require the parties to disclose their identities, places of business or other

information, or relieves a party from the legal consequences of making inaccurate or

false statements in that regard.

37 UETA section 3 (d) provides: “A transaction subject to this [Act] is also subject to other applicable substantive law.”

38 UETA section 7 provides:

(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.

(c) If a law requires a record to be in writing, an electronic record satisfies the law.

(d) If a law requires a signature, an electronic signature satisfies the law.

39 Article 9(1) provides: “Nothing in this Convention requires a communication or a contract to be

made or evidenced in any particular form.”

40 UETA article 8(b) provides:

If a law other than this [Act] requires a record (i) to be posted or displayed in a certain manner, (ii) to be sent, communicated, or transmitted by a specified method, or (iii) to contain information that is formatted in a certain manner, the following rules apply:

(1) The record must be posted or displayed in the manner specified in the other law.

(2) Except as otherwise provided in subsection (d)(2), the record must be sent, communicated, or transmitted by the method specified in the other law.

(3) The record must contain the information formatted in the manner specified in the other law.

41 Article 9(1) provides: “Nothing in this Convention requires a communication or a contract to be

made or evidenced in any particular form.”

42 Article 9(2).

43 UETA section 8(a) provides:

If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement is satisfied if

the information is provided, sent, or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.

44 UETA section 2(13) provides: “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.”

45 In some circumstances, a signature serves a third function. That is, for the party signing the document to certify the accuracy of the information in the document. However, since that is not always the function of a signature, under the Convention it is not assumed that an electronic equivalent to a signature signifies the party’s attestation to the accuracy of the information contained in the electronic communication. However, if under the circumstances, a signature on a paper document for the same transaction would signify that the person making the signature was attesting to the accuracy of the information in the communication, this same result would occur in an electronic communication under the Convention when the party met the requirements of a signature under Article 9(c).

46 Article 9(3) of the Convention provides:

Where the law requires that a communication or a contract should be

signed by a party, or provides consequences for the absence of a signature, that

requirement is met in relation to an electronic communication if:

(a) A method is used to identify the party and to indicate that party’s

intention in respect of the information contained in the electronic communication; and

(b) The method is either:

(i) as reliable as appropriate for the purpose for which the

electronic communication was generated or communicated, in the light of all the

circumstances, including any relevant agreement; or

(ii) proven in fact to have fulfilled the functions described in subparagraph (a) above, by itself of together with further evidence.

The language of the Convention is loosely based on the UNICTRAL Model Law on Electronic Commerce. See Model Law Article 7(a):

Where the law requires a signature of a person, that requirement is met in relation to a data message if:

(a) a method is used to identify that person and to indicate that person's approval of the information contained in the data message; and

(b) that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement.

Because there are circumstances when a signature indicates the identity of a person and connects that person to the electronic communication, but does not indicate the person’s approval of the information (e.g., a notary or a witness to a document), the Working Group eliminated the Model Law requirement of “approval of the information”. United Nations Document A/60/17 pp. 15-16.

47 UETA section 2(7).

48 See Comment 7 to UETA section 2. It should be noted that the Convention specifically requires that the method for determining the validity of the electronic signature be a reliable method. UETA does not have a similar requirement. This is not to say a party could not challenge the validity of an electronic signature in a case otherwise governed by UETA. The party would, however, have to look to law other than UETA such as the substantive law of evidence s the basis for this challenge.

49 Article 9(4) & (5) provide:

4. Where the law requires that a communication or a contract should be

presented or retained in its original form, or provides consequences for the absence

of an original, that requirement is met in relation to an electronic communication if:

(a) There exists a reliable assurance as to the integrity of the information it

contains from the time when it was first generated in its final form, as an electronic

communication or otherwise; and

(b) Where it is required that the information it contains be made available, that

information is capable of being displayed to the person to whom it is to be made available.

5. For the purposes of paragraph 4 (a):

(a) The criteria for assessing integrity shall be whether the information has

remained complete and unaltered, apart from the addition of any endorsement and

any change which arises in the normal course of communication, storage and

display; and

(b) The standard of reliability required shall be assessed in the light of the

purpose for which the information was generated and in the light of all the relevant

circumstances.

50 UETA section 12 provides:

(a) If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information in the record which:

(1) accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and

(2) remains accessible for later reference.

(b) A requirement to retain a record in accordance with subsection (a) does not apply to any information the sole purpose of which is to enable the record to be sent, communicated, or received.

(c) A person may satisfy subsection (a) by using the services of another person if the requirements of that subsection are satisfied.

(d) If a law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an electronic record retained in accordance with subsection (a).

(e) If a law requires retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with subsection (a).

(f) A record retained as an electronic record in accordance with subsection (a) satisfies a law requiring a person to retain a record for evidentiary, audit, or like purposes, unless a law enacted after the effective date of this [Act] specifically prohibits the use of an electronic record for the specified purpose.

(g) This section does not preclude a governmental agency of this State from specifying additional requirements for the retention of a record subject to the agency’s jurisdiction.

51 Article 8(2) provides: “Nothing in this Convention requires a party to use or to accept electronic communications, but a party’s agreement to do so may be inferred from the party’s conduct.”

52 UETA 5(a). This is further clarified in the comments to this section:

This section makes clear that this Act is intended to facilitate the use of electronic means, but does not require the use of electronic records and signatures. This fundamental principle is set forth in subsection (a) and elaborated by subsections (b) and (c), which require an intention to conduct transactions electronically and preserve the right of a party to refuse to use electronics in any subsequent transaction.

53 Article 10 of the Convention provides:

1. The time of dispatch of an electronic communication is the time when it

leaves an information system under the control of the originator or of the party who

sent it on behalf of the originator or, if the electronic communication has not left an

information system under the control of the originator or of the party who sent it on

behalf of the originator, the time when the electronic communication is received.

2. The time of receipt of an electronic communication is the time when it

becomes capable of being retrieved by the addressee at an electronic address

designated by the addressee. The time of receipt of an electronic communication at

another electronic address of the addressee is the time when it becomes capable of

being retrieved by the addressee at that address and the addressee becomes aware

that the electronic communication has been sent to that address. An electronic

communication is presumed to be capable of being retrieved by the addressee when

it reaches the addressee’s electronic address.

3. An electronic communication is deemed to be dispatched at the place

where the originator has its place of business and is deemed to be received at the

place where the addressee has its place of business, as determined in accordance

with article 6.

4. Paragraph 2 of this article applies notwithstanding that the place where

the information system supporting an electronic address is located may be different

from the place where the electronic communication is deemed to be received under

paragraph 3 of this article.

54 UETA section 15 provides:

(a) Unless otherwise agreed between the sender and the recipient, an electronic record is sent when it:

(1) is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record;

(2) is in a form capable of being processed by that system; and

(3) enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient which is under the control of the recipient.

(b) Unless otherwise agreed between a sender and the recipient, an electronic record is received when:

(1) it enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and

(2) it is in a form capable of being processed by that system.

(c) Subsection (b) applies even if the place the information processing system is located is different from the place the electronic record is deemed to be received under subsection (d).

(d) Unless otherwise expressly provided in the electronic record or agreed between the sender and the recipient, an electronic record is deemed to be sent from the sender’s place of business and to be received at the recipient’s place of business. For purposes of this subsection, the following rules apply:

(1) If the sender or recipient has more than one place of business, the place of business of that person is the place having the closest relationship to the underlying transaction.

(2) If the sender or the recipient does not have a place of business, the place of business is the sender’s or recipient’s residence, as the case may be.

(e) An electronic record is received under subsection (b) even if no individual is aware of its receipt.

(f) Receipt of an electronic acknowledgment from an information processing system described in subsection (b) establishes that a record was received but, by itself, does not establish that the content sent corresponds to the content received.

(g) If a person is aware that an electronic record purportedly sent under subsection (a), or purportedly received under subsection (b), was not actually sent or received, the legal effect of the sending or receipt is determined by other applicable law. Except to the extent permitted by the other law, the requirements of this subsection may not be varied by agreement.

55 The parties are free to set up other controlling rules regarding dispatch and receipt.

56 Comment 2 to UETA section 15.

57 The comments further explain the choice of “having to enter another system” as the basis for dispatch because of the fact that even once sent, it is often not accurate to say the information has simultaneously “left” the senders system: it is still there as well.

The record will be considered sent once it leaves the control of the sender, or comes under the control of the recipient. Records sent through e-mail or the internet will pass through many different server systems. Accordingly, the critical element when more than one system is involved is the loss of control by the sender.

However, the structure of many message delivery systems is such that electronic records may actually never leave the control of the sender. For example, within a university or corporate setting, e-mail sent within the system to another faculty member is technically not out of the sender’s control since it never leaves the organization’s server.

Comment 2 to UETA section 15.

58. UETA section 15(b).

59 Do not ask how one would factually prove the convergence of these two facts.

60 Comment 3 to UETA section 15 provides:

Many people have multiple e-mails for different purposes, and the purpose is to assure that recipients can designate the e-mail address or system to be used in a particular transaction. For example, the recipient retains the ability to designate a home e-mail for personal matters, work e-mail for official business, or a separate organizational e-mail solely for the business purposes of that organization. If A sends B a notice at his home which relates to business, it may not be deemed received if B designated his business address as the sole address for business purposes. Actual knowledge upon seeing it at home would qualify as receipt under the otherwise applicable substantive law.

In other words, UETA sets out the rule for receipt for a designated address, but specifically defers to the substantive law of contract to determine time of receipt for an undesignated address that is not normally used for those types of communications.

61 Article 10(3) of the Convention and UETA section 15(d).

62 Article 10(4) of the Convention and UETA section 15(c).

63 Article 4(g) provides:

“Automated message system” means a computer program or an electronic or other automated means used to initiate an action or respond to data messages or performances in whole or in part, without review or intervention by a person each time an action is initiated or a response is generated by the system

64 Article 12 provides:

A contract formed by the interaction of an automated message system and a

natural person, or by the interaction of automated message systems, shall not be

denied validity or enforceability on the sole ground that no natural person reviewed

each of the individual actions carried out by the systems or the resulting contract.

65 UETA section 14 provides:

In an automated transaction, the following rules apply:

(1) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents’ actions or the resulting terms and agreements.

(2) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual’s own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance.

(3) The terms of the contract are determined by the substantive law applicable to it.

66 UETA section 2(2) provides:

“Automated transaction” means a transaction conducted or performed, in whole or in part, by electronic means or electronic records, in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract, or fulfilling an obligation required by the transaction.

67 Article 14 of the Convention provides:

1. Where a natural person makes an input error in an electronic communication exchanged with the automated message system of another party and the automated message system does not provide the person with an opportunity to correct the error, that person, or the party on whose behalf that person was acting, has the right to withdraw the portion of electronic communication in which the input error was

made if:

(a) The person, or the party on whose behalf that person was acting, notifies

the other party of the error as soon as possible after having learned of the error and

indicates that he or she made an error in the electronic communication; and

(b) The person, or the party on whose behalf that person was acting, has not

used or received any material benefit or value from the goods or services, if any,

received from the other party.

2. Nothing in this article affects the application of any rule of law that may

govern the consequences of any error other than as provided for in paragraph 1.

68 UETA section 10 provides:

If a change or error in an electronic record occurs in a transmission between parties to a transaction, the following rules apply:

(1) If the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure, but the other party has not, and the nonconforming party would have detected the change or error had that party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record.

(2) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual:

(A) promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person;

(B) takes reasonable steps, including steps that conform to the other person’s reasonable instructions, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record; and

(C) has not used or received any benefit or value from the consideration, if any, received from the other person.

(3) If neither paragraph (1) nor paragraph (2) applies, the change or error has the effect provided by other law, including the law of mistake, and the parties’ contract, if any.

(4) Paragraphs (2) and (3) may not be varied by agreement.

69 Under both the Convention as well as UETA, the general law of error or mistake governs when the mistake or error is part of the underlying transaction and not connected to an error in the use of the electronic means of transaction. See Article 14(2) of the Convention and Section 10(3) of UETA.

70 Article 14(1). Input error refers to an error in inputting the date, and not a error in judgment as to the terms of the transaction. UETA refers to “error made by the individual in dealing with the electronic agent”. Although this language does not specifically limit the error to input errors as opposed to errors in judgment, this limitation is clearly intended in UETA. This point is made in the comments. See comment 1 to UETA section 14: “This section is limited to changes and errors occurring in transmissions between parties - whether person-person (paragraph 1) or in an automated transaction involving an individual and a machine (paragraphs 1 and 2). The section focuses on the effect of changes and errors occurring when records are exchanged between parties. In cases where changes and errors occur in contexts other than transmission, the law of mistake is expressly made applicable to resolve the conflict.”

71 Since the withdrawal of the erroneous communication would result in the avoidance of the effect of the erroneous communication, the result would be the same.