Legal Issues in E-Healthcare Systems - E-Healthcare Systems and Wireless Communications - page 34

knowledge of the offeror. In the case of Schelde
Delta Shipping v. Astarte Shipping Ltd [1995] 2
Lloyd's Rep. 249, the House of Lords held that if
an acceptance is sent outside the normal business
hours receipts are not effective until the opening
of business the next day. Chissick pointed out that
there is a possibility of holding an offeror liable if
the e-mail acceptance arrives at a computer under
the offeror's control provided he is acting as an
ISP. However, if he uses an ISP, the acceptance will
be effective only after the e-mail is downloaded
off server onto the computer. The medical prac-
titioners who respond to e-mail queries could be
bound by a contract when their clients download
his e-mail responses.
However, the Model Law in Article 15 states
that unless otherwise agreed between the origina-
tor and the addressee, the time of receipt of a data
message is when the message has “entered the
information system of the addressee”. Article 15
seems like imposing greater degree of responsibil-
ity on the offeree to make sure that the message
had entered the system. As long as it entered the
system the contract is effective regardless of the
fact that the message was downloaded or not.
Following the explanation of Model law once the
acceptance is received in the designated system or
computer then the seller or offeror is responsible
to arrange for prompt handling of message. Any
mismanagement of message after it had been sent
to the designated system falls on the offeror.
The Model Law further states that if there is
a designated information system but the message
was sent to another system the data message is
received when it was retrieved. The Article gives
the impression that as long as the message is re-
trieved the message is received regardless of the
fact that the message is read or not. The Hong
Kong Electronic Ordinance on this issue states that
when there was a designated information system
but the message was sent to another system, the
address of the electronic record would only be
bound at the time it “comes to the knowledge of
the addressee” (Stephenson, 2001).

As regards to intention to create legal relation,
the general presumption is that the business agree-
ments are intended to face the legal consequences
unless the parties specify otherwise. In the context
of online contract, the existence of intent is nor-
mally automatic. However, an unclear or decep-
tive web site may dupe a consumer into making
an unwanted contract. For example, an online
supplier or service providers offering a digitised
service may construct a web site which gives no
purchasing information and merely displays the
product and a “Save” or “Download Now” but-
ton. An unsuspecting customer will assume that
the service is free and has no intention of creating
a contract when the customer clicks the button.
After the digitalized service has been delivered,
the online merchant cannot demand payment
because of the customer's absence of intention to
create legal relation. To avoid this, the law should
ensure that commercial web sites explicitly state
the prices and terms of their digitalised services
or products. The customer should go through a
sub-sequence of web pages detailing the terms
and conditions of the transaction before making
a purchase.
The EU Council Directive on E-Commerce
(87/102/EEC) requires 3 steps to be taken by
the e-shop owner as a contractual process before
concluding the contract. They are offer, acceptance
and acknowledgement of receipt. This will ensure
that the acceptor knows that he is entering into a
contract and there will be legal consequences when
there is a breach. One may argue that e-commerce
lack contractual expressiveness like pushing of a
button or shaking hands. The Directive consider-
ing this type of situation specifically requires in
Article 10.2, the Member States to provide with
ways to ensure that the parties can give their full
and informed consent. It further requires providing
an opportunity to e-consumers or buyers to detect
and correct mistakes and errors. In other words
there is requirement to take measures like “double
clicks” in the e-commerce web site to ensure
complete consent. In case of e-mail exchanges,