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The Performance Barriers of Online Transaction Contract and the Remedy

Author: BaiXue
Tutor: SunXueZhi
School: Jilin University
Course: Civil and Commercial Law
Keywords: Online transaction contract performance barriers remedy
CLC: D923.6
Type: Master's thesis
Year: 2011
Downloads: 184
Quote: 2
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Abstract

Online transaction contract, which is reached through the computer network, is the agreement to set up, change or terminate property rights and obligations between equal subjects. There is a clear difference between the traditional contract of sale and the contract of online transactions——the contract of online transactions is done through computer networks.This paper is divided into four parts except for the introduction and conclusion. The first part, an overview of the performance barriers of online transaction contract, including the definition, causes and types of it. Analysis the specific problems of the online transaction contract. The performance barriers of online transaction contract refer to the situations which prevent normal performance of the contract. Online transaction is a major type of e-commerce transaction, which is special compared to traditional transactions. First, because of the network environment, the identity of trading partners and their ability to conclude contracts is difficult. Second, because there is a lot of click contracts, it is almost impossible to withdraw the offer and commitment, and this makes the traditional theory of contract law on the offer and commitment is difficult to apply. In addition, because of the asymmetric information between the buyer and the seller, there is a lack of protection of the buyer’s right to know the situation about the subject in the online transactions. Therefore, the online transaction contract is more likely to face the performance barriers. The main types of the performance barriers of online transaction contract including failing to perform the contract, delaying in performance, refusing to perform the contract and incomplete performance.The second part, Analysis of the plight of the remedy of the buyer’s rights after the performance barriers of online transaction contract happened. Because of the special nature of network transactions, the buyers get extreme disadvantages in the transactions. after the occurrence of the performance barriers of online transactions contract, the dilemmas of remedy the buyer’s rights are as follows:Firstly, it is difficult to proof the transaction process for both the buyer and the seller. Secondly, according to China’s current law, the buyer’s right to withdraw the contract within a reasonable period has not yet been recognized. In addition, the error caused by network outages and viruses attacks involves the new exemptions which independent from the rules of the traditional contract law, and it makes the division of contract responsibilities facing new problems after the occurrence of the performance barriers of online transactions contract. Finally, it is difficult to choose jurisdictional agency and applicable law for contracts when it comes to performance barriers of regional and national network transactions contract.The third part, provide the concept support for the rules which help to protect the buyer in the online transactions by three principles:the principle of consumer protection, the principle of balance of interests and the principle of balance between fairness and efficiency.The fourth part is the focus of this paper, this part try to find a solution of the problems mentioned in the second part. Currently, re-positioning of electronic contracts is the trend of e-commerce legislation on the national. Maybe it is also the future direction of our contract law to absorb the rules of Consumer Protection Law, E-Commerce Law and Foreign Law about the online transaction contract. Because of the special nature of online transaction contract and the buyer’s status in the transaction, our legislation should provide protection for the buyer. Firstly, confirm their right of withdrawing the contract within a reasonable period. Secondly, provide a clear and appropriate division of the burden of proof after the occurrence of the performance barriers of online transaction contract. Thirdly, review the establishment of the new exemptions——the electronic error caused by network outages and virus attacks, and make strict limits of electronic self-service which the seller can use after the buyer defaults-electronic control and electronic self-help. In addition, determine jurisdiction and applicable law to solve the disputes which caused by performance barriers of regional and national network transactions contract. Finally, develop the rules of online dispute resolution mechanisms to resolve contract disputes in online transaction.The conclusion summarized the main views of the paper.

The Performance Barriers of Online Transaction Contract and the Remedy

Abstract

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