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When surfers start to shop: Internet commerce and contract law*

Published online by Cambridge University Press:  02 January 2018

Roger Brownsword  and
Geraint Howells
Roger Brownsword
Affiliation:
University of Sheffield
Geraint Howells
Affiliation:
University of Sheffield
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Abstract

Given that the modern law of contract is geared to the protection of reasonable expectation, is this approach capable of extension to contracting in electronic environments, particularly to mass consumer contracting via the Internet? The position taken in this paper is that the gearing of the modern law is largely appropriate. Applying such a modern approach to the provision of dedicated legal regimes for electronic commerce, the principle of ‘medium neutrality’ puts electronic environments on the same footing as traditional contracting environments; and the principles of fair dealing developed for traditional consumer marketplaces are copied across to virtual shopping sites. Whilst we contend that a revolution in the technology of contracting does not imply a revolution in contractual principles, we accept that it will not always be straightforward for the law to implement or respond to the reasonable expectations of Internet contractors (particularly so where, as is increasingly the case, contractors from radically different cultures are connected by the Internet).

Type
Research Article
Information
Legal Studies , Volume 19 , Issue 3 , September 1999 , pp. 287 - 315
Copyright
Copyright © Society of Legal Scholars 1999

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Footnotes

*

Working drafts of this paper were given at the University of Stellenbosch (September 1998), at an international conference on ‘Legal Problems of the Electronic Age’ held at the Hebrew University, Jerusalem (October 1998), and at the University of Wales, Cardiff (November 1998).

References

1. Cf M Bacchetta, P Low, A Mattoo, L Schuknecht, H Wager, and M Wehrens Electronic Commerce and the Role of the WTO (Geneva: World Trade Organization, 1998) p 5, where electronic commerce is broadly defined as referring to six instruments, namely: ‘the telephone, the fax, television, electronic payment and money transfer systems, Electronic Data Interchange and the Internet.’

2. Above n 1.

3. Above n 1, p 1. These sentiments are echoed in the DTI Consultation Paper Building Confidence in Electronic Commerce (5 March 1999: URN 99/642) para 2. Quite apart from the prospect of individuals increasingly communicating ‘with business and other individuals through a home computer or a digital TV connected to the internet, or using a publicly available kiosk in a public library or the local supermarket’, the government's target is that, by 2002, ‘25% of dealings by citizens with government should be able to be done electronically’ (ibid).

4. For such a prospect, see eg WTO report above n 1, ch IV; the Clinton Administration's A Framework for Electronic Commerce (Whitehouse, 1997) (http://www.ecommerce.gov/framewrk.htm); ‘Focus on IT in Retailing’ Financial Times, 3 June 1998; and M Tran ‘Americans push cyberspace stores to $13bn boom’ Guardian, 29 December 1998.

5. C E Heckman ‘Background Note’ in Gateways to the Global Market: Consumers and Electronic Commerce (Paris: OECD, 1998) pp 27, 28(see also pp 32–33 for further examples of shopping sites).

6. See eg the Guardian, 16 November and 5 December 1998, where readers were given hints for on-line Christmas shopping. And, the Internet is not inflexible: it can be a medium, too, for auction sales and ‘e-flea markets’, on the latter of which see C Handy ‘E-flea Market’ Guardian Online 22 April 1999, p 2.

7. For a very helpful review of the legal issues raised by e-commerce, see the Report of the Electronic Commerce Expert Group to the Attorney General of Australia Electronic Commerce: Building the Legal Framework (31 March 1998); and M de Zwart ‘Electronic Commerce: Promises, Problems and Proposals’ (1998) 21 UNSWLJ 305. See, too, L Edwards and C Waelde (eds) Law and the Internet (Oxford: Hart Publishing, 1997) Pt III.

8. Dismantling the Barriers to Global Electronic Commerce (Paris: OECD, 1998); and, on the processes by which trust is generated and supported, see S Deakin and J Michie (eds) Contracts, Co-operation, and Competition (Oxford: Oxford University Press, 1997).

9. OJ C30, 5.2.99, p 4.

10. OJ C325, 23.10.98, p 5.

11. D Johnston ‘Opening Remarks’ in Gateways to the Global Market, above n 5, pp 13, 15. For a similar emphasis on the need for effective consumer protection, see Dismantling the Barriers to Global Electronic Commerce (Paris: OECD, 1998). See, too, the Australian Competition and Consumer Commission's Discussion Paper The Global Enforcement Challenge: the Enforcement of Consumer Protection Laws in a Global Marketplace (August 1997) (http://www.accc.gov.au/docs/global/httoc.htm).

12. Council Directive 93/13EC.

13. Council Directive 97/7/EC.

14. See Recital 14 of the draft directive.

15. See eg the Report of the Electronic Commerce Expert Group to the Attorney General of Australia, above n 7, ch 3.

16. See eg the remarks by A Niimura in Gateways to the Global Market, above n 5, at pp 110–111.

17. P S Atiyah The Rise and Fall of Freedom of Contract (Oxford: Oxford University Press, 1979).

18. Above n 17, p 681.

19. See eg J N Adams and R Brownsword Understanding Contract Law (London: Sweet and Maxwell, 2nd edn, 1996); H Collins The Law of Contract (London: Butterworths, 3rd edn, 1997); T Wilhelmsson (ed) Perspectives of Critical Contract Law (Aldershot: Dartmouth, 1993); and R Brownsword, G Howells and T Wilhelmsson (eds) Welfarism in Contract Law (Aldershot: Dartmouth, 1994).

20. Cf J Wightman Contract: A Critical Commentary (London: Pluto Press, 1996). For an account of pluralism in the USA. see R A Hillman The Richness of Contract Law (Dordrecht: Kluwer, 1997).

21. See, too, during roughly the same period, the Misrepresentation Act 1967, the Fair Trading Act 1973, and the Consumer Credit Act 1974 (esp s 137(1), which regulates extortionate credit bargains).

22. As is the case, for example, with clauses which purport to exclude or restrict liability for death or personal injury resulting from negligence (s 2(1)), clauses which purport to exclude the implied obligations as to title under s 12 of the Sale of Goods Act (s 6(1)), and clauses in consumer contracts that purport to exclude or restrict liability for breach of the implied obligations under ss 13, 14, and 15 of the Sale of Goods Act 1979 (s 6(2)).

23. NB under the Fair Trading Act 1973, civil law non-enforcement can be (and occasionally has been) backed up by criminal offences where terms and conditions in contracts are so adverse to the economic interests of consumers as to be inequitable: see ss 17(2)(d), 22, and 23 of the Act; and the Consumer Transactions (Restrictions on Statements) Order 1976, SI 1976/1813, as amended by SI 1978/127. These criminal sanctions, however, are limited as they were introduced before the Unfair Contract Terms Act 1977. That particular route for enacting secondary legislation is also moribund. However, persistent breach of the civil or criminal law could lead to the Director General of Fair Trading seeking an assurance under Pt III of the Fair Trading Act. These powers, though, are in need of revision to increase their effectiveness: see G Howells and S Weatherill Consumer Protection Law (Aldershot: Dartmouth, 1995) pp 511–524.

24. Although the guidelines in Sch 2 relate explicitly only to the reasonableness test as it arises under ss 6 and 7 of UCTA, judicial practice is to regard the guidelines as generally applicable. See eg Stag Line Ltd v Tyne Shiprepair Group Ltd (The Zinnia) (1984) 2 Lloyd's Rep 211; Rees-Hough Ltd v Redland Reinforced Plastics Ltd (1985) 2 Con LR 109; and Phillips Products Ltd v T Hyland and Hamstead Plant Hire Co Ltd (1987) 2 All ER 620.

According to Sch 2, the factors which weigh against the reasonableness of a term include: (a) that the parties are of unequal bargaining strength (where the party in the stronger bargaining position has imposed the term on the party in the weaker bargaining position); and (b) that the supplier is in a monopoly position in relation to the customer - that, for the customer, it is essentially a case of ‘take it or leave it’ . On the other side, factors which weigh in favour of the reasonableness of a term include: (a) that an inducement is offered for acceptance of the term (eg a price reduction for a limitation of liability); (b) that the customer has other options; and (c) that the customer knows, or ought reasonably to know, about the term. Schedule 2 also lists ‘whether the goods were manufactured, processed or adapted to the special order of the customer’ . Presumably, where goods are so manufactured, processed or adapted, this factor tends to weigh in favour of the reasonableness of a term.

25. SI 1994/3159.

26. Council Directive 93/13/EEC.

27. Cf R Brownsword and G Howells ‘The Implementation of the EC Directive on Unfair Terms in Consumer Contracts - Some Unresolved Questions’ (1995) JBL 243.

28. Seminally, see S Macaulay “on-Contractual Relations in Business” (1963) 28 Am Sociological Rev 55; and I R Macneil ‘The Many Futures of Contract’ (1974) 47 Southern Calif LR 691. More recently, see eg D Campbell and P Vincent-Jones (eds) Contract and Economic Organisation (Aldershot: Dartmouth, 1996); and M A Eisenberg ‘Relational Contracts’ in J Beatson and D Friedmann (eds) Good Faith and Fault in Contract Law (Oxford: Clarendon Press, 1995) p 29 1.

29. Per Steyn LJ in G Percy Trentham Ltd v Archital Luxfer Ltd (1993) 1 Lloyd's Rep 25 at 29.

30. See eg Lord Wilberforce's well-known remarks in New Zealand Shipping Co Ltd v A M Satterthwaite and Co Ltd: The Eurymedon (1975) AC 154 at 167.

31. The Rt Hon Sir R Goff ‘Commercial Contracts and the Commercial Court’ (1984) Lloyd's MCLQ 382 at 391.

32. See R Brownsword ‘Static and Dynamic Market Individualism’ in R Halson (ed) Exploring the Boundaries of Contract (Aldershot: Dartmouth, 1996) p 48.

33. Cf R Brownsword, N J Hird and G Howells (eds) Good Faith in Contracts: Concept and Context (Aldershot: Ashgate, 1999).

34. Cf Gateways to the Global Market, above n 5, p 7: ‘[G]overnments are faced with the question of how best to protect their citizens without inhibiting the growth of this evolving marketplace.’

35. Article 9(1).

36. For an accessible discussion of electronic signatures and encryption techniques, see I Lloyd ‘Legal Barriers to Electronic Contracts: Formal Requirements and Digital Signatures’ in Edwards and Waelde (eds), above n 7, p 137.

37. A further consideration here is that encrypted messages should not be so secure that they cannot be intercepted and deciphered by law enforcement agencies - an issue that has been very much to the fore in the DTI consultations in advance of the UK government's preparatory legislation on electronic commerce (above n 3). See I Lloyd, above n 36. For the view that the government has worried too much about regulating cryptography and not enough about facilitating electronic commerce, see the Seventh Report from the Trade and Industry Committee (Session 1998-99: HC187), ‘Building Confidence in Electronic Commerce’: The Government's Proposals.

38. See COM (98) 297 final.

39. Above n 7.

40. Above n 7, recommendation 5.

41. Above n 7, recommendation 2.

42. Recommendation 7.

43. See the New Zealand Law Commission Report 50: Electronic Commerce (http://www.lawcom.govt.nz/EComm/R50) where UNCITRAL's general principle of functional equivalence is combined with four specific guiding principles (paras 13-14), namely: (i) ‘[t]o ensure that business people can choose whether to do business through the use of paper documentation or by electronic means without any avoidable uncertainty arising out of the use of electronic means of communication’ (para 30 et seq); (ii) ‘[t]o ensure that the fundamental principles underlying the law of contract and tort remain untouched save to the extent that adaptation is required to meet the needs of electronic commerce’ (para 34 et seq); (iii) ‘[t]o ensure that any laws which are enacted to adapt the law of contract or the law of torts to the use of electronic commerce are expressed in a technologically neutral manner so that changes to the law are not restricted to existing technology and can apply equally to technology yet to be invented’ (para 40 et seq); and (iv) ‘[t]o ensure compatibility between principles of domestic and private international law as applied in New Zealand and those applied by our major trading partners’ (para 43 et seq).

44. Above n 7, para 4.2.1 1. And, at para 4.2.10, the facilitative philosophy underlying the principle of medium neutrality is elaborated very helpfully. According to the Expert Group, dedicated electronic commerce legislation could: ‘(a) directly remove legal impediments to the implementation of electronic commerce; (b) ensure certainty as to the application of the law to electronic commerce and enhance business and consumer trust and confidence; (c) minimise costs and litigation; (d) be applied to a wide range of transactions, facilitating both related and un-related transactions; (e) satisfy the objective of minimising regulatory burdens upon government and business by adopting a minimal approach and simply ensuring functional equivalence between paper-based and electronic transactions; (f) provide a vehicle for the harmonisation of laws governing electronic commerce…; and (g) as a result of the above, facilitate the cross-border recognition and enforcement of electronic transactions and signatures.’

45. The spirit of the DTI Consultation Paper (above n 3) is right in line with this approach, the leading principle being one of putting in place ‘a policy and legal framework to promote electronic commerce’ (para 3). One of the most important ways of promoting electronic commerce is said to be ‘by ensuring that, as far as possible, the law does not discriminate between traditional and electronic ways of doing business’ (para 16) (but note that, contrary to usage elsewhere, the DTI refers to this, not as a principle of medium neutrality, but as a ‘technology neutral’ approach (cf above n 43)).

46. Arguably, it is an oversimplification to treat electronic commerce as just another form of instantaneous contracting: see L Davies ‘Contract Formation on the Internet: Shattering a Few Myths’ in Edwards and Waelde (eds), above n 7, p 97.

47. See art 11 of the draft directive on electronic commerce for dedicated provisions dealing with the question of the time at which a contract is concluded.

48. Davies, above n 46, p 119.

49. Cf Brinkibon Ltd v Stahag Stahl und Stahlwarenhandel GmbH (1983) 2 AC 34.

50. Above n 5, p 49.

51. See eg ‘Dixons’ extended warranty trap Which?, 7 January 1999 p 4; and ‘Surfing the High Street’ Which?, 7 January 1999, p 16.

52. See C E Heckman, above n 5, p 55.

53. See M de Zwart, above n 7, p 312 for a summary of a number of strategies outlined in the Australian Competition and Consumer Commission's Discussion Paper The Global Enforcement Challenge: the Enforcement of Consumer Protection Laws in a Global Marketplace (August 1997) (http://www.accc.gov.au/docs/global/httoc.htm). These strategies include: ‘improved cooperation between government enforcement agencies and industry bodies, consumer education programs, maintenance and sharing of information databases relating to scams and fraudulent dealing, the development of industry certification standards and codes of conduct, harmonisation of international standards and development of dispute handling mechanisms.’

54. Discussion paper, above n 5, p 60.

55. Council Directive 93/13/EEC. Cf below n 103.

56. Note, too, art 10 of the draft directive on electronic commerce, setting out the information to be given by the service provider as to the manner of the formation of the contract. Significantly, art 10(1) provides that the information must be presented ‘clearly and unequivocally’ and art 10(2) states that the process should be designed to ‘ensure that parties can reach a full and informed consent’.

57. See Department of Trade and Industry Distance Selling: Implementation of Ell Directive 97/7 on the Protection of Consumers in Respect of Distance Contracts (June 1998) para 1.5: ‘A distance contract is one where supplier and consumer do not come face to face up to and including the moment at which the contract is concluded (eg mail order, telephone sales, electronic commerce).’

58. In fact, the first proposal for a directive referred in its commentary to home computers and systems such as Minitel and Bildschirmtext, which can be presumed to be the forerunners of e-mail, and so this type of communication must have been in the mind of the legislators: COM (92) 11 at 2.

59. See Parker v South Eastern Ry (1877) 2 CPD 416 (and below nn 91 and 92).

60. NB Department of Trade and Industry Distance Selling: Implementation of E U Directive 97/7 on the Protection of Consumers in Respect of Distance Contracts, above n 57, para 2.2, for comparison with the Mail Order Transactions (Information) Order 1976, SI 1976/1812.

61. Cf Gateways to the Global Market, above n 5, at p 118.

62. In an earlier version, the (draft) directive required that the prior information should be provided in a written form. Obviously, had this not been amended, electronic commerce would have been seriously impeded.

63. Davies, above n 46, p 116.

64. As usual, Lord Denning was ahead of his time when he famously remarked that some terms might need to be flagged by the use of red hands – he might almost have been anticipating the pointing fingers and hands that will lead customers around the supplier's virtual store.

65. See, too, the protective interpretation of art 5 of the directive in H W Micklitz and N Reich Die Fernabsatzrichtlinie im deutschen Recht (Baden-Baden: Nomos, 1998) p 56.

66. Article 6(2) states that art 6(1) applies whether the legal requirement is ‘in the form of an obligation or whether the law simply provides consequences for the information not being in writing’.

67. This right is provided for in art 6 of the directive.

68. Above n 57.

69. Above n 57, para 2.5.

70. For instance, how is the supplier to know whether the consumer owned the computer from which the message was generated? How does the supplier know whether the order was generated from the consumer's own computer or his employer's or from a Cyber-cafe? Indeed, ownership of the computer seems of less importance than that the response be sent to a personalised account.

71. I Ramsay Consumer Protection (London: Weidenfeld and Nicolson, 1989) p 332.

72. This has been labelled a ‘radical transparency strategy’: see G Howells and T Wilhelmsson EC Consumer Law (Aldershot: Dartmouth, 1997) pp 311-312.

73. G Howells ‘A Consideration of European Proposals Regulating Distant Selling’ in J Lonbay (ed) The European Consumer (London: BICCL, 1996) p 146.

74. Council Directive 85/577/EEC to protect the consumer in respect of contracts negotiated away from business premises: OJ 1985 L 372/31.

75. Even helpful provisions, like the requirement in the UK's Consumer Credit Act 1974 that the consumer be provided with a cancellation notice that he can be required to return, are only likely to mitigate to a limited extent the problems of utilising the law.

76. See eg Consumer Redress in the Global Marketplace: Chargebacks OCDE/GD(96) 142.

77. See text below at n 89 et seq.

78. Council Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the member states concerning consumer credit: OJ 1987 L42/48 (asamended by Directive90/88/EEC: OJ 199OL61/14), art 11; see Howells and Wilhelmsson, above n 72, pp 208–210.

79. Article 2(1)(f).

80. Article 11(2)(e).

81. Article 11(2)(b).

82. Section 75(1) provides: ‘If a debtor under a debtor-creditor-supplier agreement falling within s 12 (b) or 12 (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.’ Section 12(b) refers to restricted-use credit agreements; s 12 (c) refers to unrestricted-use credit agreements. In both cases, however, the agreement is one made by the creditor ‘under pre-existing arrangements’ with the supplier. Generally, see, Howells and Weatherill, above n 23, pp 264–271.

83. Above n 82.

84. See Connected Lender Liability (Office of Fair Trading, 1994).

85. (1997) 2 All ER 484.

86. According to art 16 (1) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (the Brussels Convention) (as incorporated by the Civil Jurisdiction and Judgments Act 1982), ‘in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property’ the courts of the state in which the property is situated have exclusive jurisdiction.

87. The Court of Appeal ruled that, even if the timeshare agreements concerned tenancies of immovable property within the meaning of art 16(1), it did not follow that the words like claim in s 75 transferred this jurisdictional limit across to the debtor-plaintiffs statutory cause of action against the creditor-defendants. The words referred to a like cause of action rather than a like array of remedies. As Morritt LJ put it ((1997) 2 All ER 484 at 495–496): Further, the use of the words “the like” presupposes some differences. I can see no reason at all for supposing that Parliament intended to enact in relation to the statutory cause of action conferred by s 75 (or s 56) any jurisdictional requirement to be observed in proceedings against the supplier…’‘[Moreover] [t]here is no reason to suppose that it was the intention of the signatories to the 1968 convention that rights conferred by the legislation in one contracting state for the protection of the consumer should, if those rights are linked to a dispute between the consumer and a third party concerning rights in rem or a tenancy, only be enforced in the courts of another contracting state.’

88. See Heckman, above n 5, p 56; and the WTO report, above n 1, pp 38–39.

89. The OECD, above n 8, reports that: ‘in 1996, both America Online and AT & T guaranteed users protection from losses for purchases made from an approved merchant (AOL) or using their payment system (AT & T). Some “e-commerce malls” have recently made similar guarantees.’

90. For discussion see R Brownsword and J MacGowan ‘Credit Card Fraud’ (1997) 147 NLJ 1806; response by S Ward (1998) 148 NLJ 7: and reply by R Brownsword and J MacGowan (1998) 148 NLJ 133.

91. The key case is Thornton v Shoe Lane Parking Ltd (1971) 2 QB 163.

92. See eg Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd (1988) 1 All ER 348; and AEG (UK) Ltd v Logic Resource Lid (1995) CCH Commercial LR 265 (on which, see, R Bradgate ‘Unreasonable Standard Terms’ (1997) 60 MLR 582).

93. See eg Wallis, Son and Wells v Pratt and Haynes (1911) AC 394 (exclusion of liability for breach of warranty does not cover liability for breach of condition); Andrews Bros (Bournemouth) Ltd v Singer (1934) 1 KB 17 (exclusion of liability for breach of implied terms does not cover liability for breach of express terms). And cf reg 6 of the Unfair Terms in Consumer Contracts Regulations 1994, SI 1994/3159, under which a seller or supplier's written terms are to be expressed in plain, intelligible language, failing which ‘the interpretation most favourable to the consumer shall prevail’.

94. (1996) 3 All ER 545 at 552.

95. Nor, for that matter, does UCTA cover all types of contract (see the various exemptions, most significantly perhaps of insurance contracts, in Sch 1).

96. See J N Adams and R Brownsword Key Issues in Contract (London: Butterworths, 1995) pp 269–281. And see E Peel ‘Making More Use of the Unfair Contract Terms Act 1977: Stewart Gill Ltd v Horatio Myer and Co Ltd’ (1993) 56 MLR 98.

97. For full discussion of this question, see R Brownsword ‘Judicial Revision of Abusive Contractual Terms: Credit Card Fraud and Charge-Back Clauses’ Revista de Direito Bancário, Special Edition (Proceedings of the First International Symposium of Banking Law: Banking Law and the Globalization of the Financial System, Sao Paulo, Brazil, 1998) p 668.

98. See J N Adam and R Brownsword ‘The Unfair Contract Terms Act: A Decade of Discretion’ (1988) 104 LQR 94, and above n 96, ch 8.

99. Seminally, see Photo Production Ltd v Securicor Transport Ltd (1980) AC 827.

100. See eg George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd (1983) AC 803.

101. Cf Thompson v T Lohan (Plant Hire) Ltd (JW Hurdiss Ltd, third party) (1987) 2 All ER 63 1.

102. Directive 86/653/EEC, implemented by the Commercial Agents (Council Directive) Regulations 1993, SI 1993/3053. Regulations 3(1) and 4(1) lay down reciprocal duties on principal and agent to ‘act dutifully and in good faith’ in relation to one another's interests.

103. Directive 93/13/EEC, implemented by the Unfair Terms in Consumer Contracts Regulations 1994, SI 1994/3 159. Article 3(1) of the directive, implemented by reg 4(1), provides that a term is unfair if ‘contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer’ . For analysis of art 3, see R Brownsword, G Howells and T Wilhelmsson ‘Between Market and Welfare: Some Reflections on art 3 of the EC Directive on Unfair Terms in Consumer Contracts’ in C Willett (ed) Aspects of Fairness in Contract (London: Blackstone, 1996) p 25; and for analysis of the regulations, see Brownsword and Howells, above n 27.

104. See eg the consumer complaint against American Express Europe Ltd reported in the Office of Fair Trading's bulletin on Unfair Contract Terms (Issue No 4, December 1997) at p 28.

105. Nevertheless, the last decade has seen a considerable growth of interest in the idea of good faith. See eg J F O'Connor Good Faith in English Law (Aldershot: Dartmouth, 1991) ch 3; The Hon J Steyn ‘The Role of Good Faith and Fair Dealing in Contract Law: A Hair-Shirt Philosophy?’ (1991) Denning LJ 131; R Goode ‘The Concept of “Good Faith in English Law’ (Centro di Studi e Richerche di Diritto Comparato e Straniero, Saggi, Conferenze e Seminari 2, Rome 1992); J Beatson and D Friedmann (eds) Good Faith and Fault in Contract Law (Oxford: Clarendon Press, 1995); Adams and Brownsword, above n 96, esp ch 7; R Brownsword”‘ Good Faith in Contracts' Revisited’ in M Freeman (ed) 49(2) (1996) Current Legal Problems 111; R Brownsword ‘Contract Law, Co-operation, and Good Faith: the Movement from Static to Dynamic Market-Individualism’ in S Deakin and J Michie (eds) Contracts, Co-operation and Competition (Oxford: Oxford University Press, 1997) 255; Collins, above n 19; R Harrison Good Faith in Sales (London: Sweet & Maxwell, 1997); and Brownsword, Hird and Howells (eds), above n 33.

106. Cf eg Curtis v Chemical Cleaning and Dyeing Co Ltd (1951) 1 All ER 63 1.

107. Cf eg City and Westminster Properties (1934) Ltd v Mudd (1959) Ch 129.

108. Witness eg S M Waddams ‘Unconscionability in Contracts’ (1976) 39 MLR 369.

109. (1997) 1 All ER 144.

110. (1997) 1 All ER 144 at 151, per Nourse LJ.

111. (1997) 1 All ER 144 at 151.

112. The dicta in Burch should be treated with some caution. Burch itself was decided on the ground of undue influence, and the factual situation - where a vulnerable party gives a guarantee (involving a charge over the property in which that party lives) for the benefit of a close third party (a member of the family; or, in Burch, a trusted employer) - is one of the paradigms for protective relief. Moreover, before we get carried away with the idea of unconscionability as a ground for relief, note should be taken of Lord Hoffmann's speech in Union Eagle Ltd v Golden Achievement Ltd (1997) 2 All ER 215.

113. See further R Brownsword ‘Copyright Assignment, Fair Dealing, and Unconscionable Contracts’ (1998) Intellectual Property Quarterly 311; and Sir A Mason ‘The Impact of Equitable Doctrine on the Law of Contract’ (1998) 27 Anglo-Am LR 1.

114. From SET to virtual credit cards and beyond, see Gateways to the Global Market, above n 5, pp 56–57. For the steps now being considered to combat card fraud (eg laser-etched signatures and photo cards, ins recognition, finger scanning, and so on) see L Saigol and R Jones ‘One in the Eye for Credit Card Cheats’ Guardian: Money, 31 January 1998, p 14.

115. Cf Gateways to the Global Market, above n 5, p 132 (where C Varney reports a consensus that, if electronic commerce is to reach its potential, ‘government, industry, and consumer advocates must proceed as partners’).

116. J Steyn ‘Contract Law: Fulfilling the Reasonable Expectations of Honest Men’ (1997) 113 LQR 433.

117. Above n 116, p 439.

118. Cf C E Hackman, above n 5, at p 63: ‘[S]ub-communities would be left free to develop their own codes of conduct. Those who wish to trade in full-motion video clips could establish the rules best suited to that purposes [sic] while those who wish to trade in jazz records could establish the rules best suited to that.’

119. J Wightman ‘Good Faith and Pluralism in the Law of Contract’ in Brownsword, Hird and Howells (eds), above n 33, pp 43–44, suggests three requirements for a contractual community: (i) regular dealing; (ii) an absence of ‘gross disparities of power between different contractual interests’; and (iii) relational contracting to the extent that there is a body of experience ‘not just of making and performing the contracts, but also of handling problems when the contract goes wrong’.

120. Cf G Howells and T Wilhelmsson ‘EC and US Approaches to Consumer Protection-Should the Gap Be Bridged?’ (1998) 17 Yearbook of European Law 207. But we should not assume too readily that surface harmonisation, even in Europe, implies uniform compliance: see H Collins ‘Transnational Private Law Regulation of Markets’ (1998) Diritto Europeo 1967.

121. Cf above n 118.

122. Although not necessarily so: cf the thinking of the New Zealand Law Commission (above n 43, at paras 25–26). According to the Commission, the negotiation of formal conventions may not be the best way forward. Rather, uniform terms based on custom and usage might be developed, such commercial usage then translating ‘into a form of lex mercatoria’ (para 26).

123. See eg Howells and Wilhelmsson, above n 120, pp 209–213.

124. Cf the second specific guiding principle adopted by the New Zealand Law Commission, above n 43.

125. Above n 20, p xiii.

126. For a good summary of the kinds of problems encountered by private law claimants, see M Cappelletti ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement’ (1993) 56 MLR 282