With today’s ever-increasing mobility and globalization, online contracts are now unavoidable, be they on behalf of your company or on a personal level. The usual rules of contractual formation and validity have had to be adapted to the particularities of the paperless alternatives and to an absence of geographical barriers and analog formats.
The specificities of online contracts raise certain questions. For example, when making an online purchase in your car on the way to New York City, even though you may live in Montreal, you may have wondered where the contract was actually formed.
To this, we would reply that a contract is generally considered to have been formed in the place where its acceptance was received; and if that place cannot be determined, then it will be wherever such acceptance would normally be received.
To avoid possible pitfalls, do not hesitate to contact us with questions about online contract formation, even in advance, whether you are offering a service or product online, or entering into an online contract yourself. Such questions may include:
When is an online contract consented to?
There are two possible forms of consent for online contracts: implicit or explicit. Explicit consent would be, for example, clicking on a button stipulating your consent. The conditions and the circumstances of each file are essential to determining whether or not consent was validly given, or if a client’s consent may be validly requested when offering goods or services online.
When and where is an online contract formed?
Case law has interpreted and applied the rules of the Civil Code to online contracts. Determining the time and place of contract formation will ultimately remain a question of fact that must be answered on a case-by-case basis.
Is an electronic signature valid?
The Act to establish a legal framework for information technology, international norms and various regulations have made it possible to define what constitutes a valid electronic signature. Once we know which form of online signature you’re currently using or would like to adopt, we will be able to assist you in determining whether it meets the various criteria.
Are all the clauses of the contract valid?
Some clauses may be deemed illegible, incomprehensible, external or may otherwise be declared unfair and void depending on their content and the nature of your contract. Each contract must be analysed before we can opine on the validity of its clauses, since various elements such as the intention of the parties, the nature of the contract, the circumstances of its conclusion, and the structure of the contract must be taken into consideration.
Which law applies to the contract and which court will have jurisdiction to hear it in the event of a dispute?
If your contract is a consumer contract, the Consumer Protection Act applies and prohibits you from subjecting a contract concluded in Canada or Quebec to the law of another jurisdiction. The situation is different when there is no consumer contract. In such cases, it is necessary to review the contract, its clauses, the circumstances of its conclusion and the common intention of the parties to determine the applicable jurisdiction.
Can your case be referred to an arbitrator?
Again, if your contract is a consumer contract, the Consumer Protection Act prohibits you from submitting the dispute to arbitration at the moment of its conclusion. For non-consumer contracts, the factors mentioned in the previous question should be followed.
How can a contract be cancelled or terminated?
Under the Consumer Protection Act, consumer contracts can be automatically terminated under certain conditions. The rules of the Civil Code of Québec will apply to other types of contracts as well as to the content thereof.