a. Reviewed without change. (Nov. 1997); (Feb. 1998)

1. This Section deals with the effect of commercially reasonable attribution procedures dealing with the detection of error or of changes in the content of electronic records. Use of such procedures creates a presumption regarding the accuracy or unchanged nature of the record.. Other presumptions may be appropriate depending on the nature of the procedure and this section does not foreclose their development by courts. The underlying principle is that, if the parties agree to or adopt a commercially reasonable procedure, records created or transferred in compliance with that procedure are entitled to enhanced legal recognition. The presumption is rebuttable and is conditioned on the procedure used qualifying as a commercially reasonable attribution procedure. This means not only that the procedure was commercially reasonable, but that the procedure was agreed to or adopted by the parties.. The language here comes largely from pending Illinois Digital Signature statute which contains more detailed provisions regarding secure electronic records. Since the principle enacted here hinges on agreement and general considerations of commercial reasonableness, the concept is technologically neutral.

2. The presumptions are limited to issues to which the error detection procedure applies. Proof or disproof of alleged errors in other aspects of an electronic transaction are, with the exception of consumer cases, left to law outside this Article. The common law of mistake obviously applies as does the case law developed for dealing with the legal consequences of garbled transmissions or records that have been allegedly tampered with.

3. The presumptions here not only reflect a deference to the choices of the parties, if commercially reasonable, but the greater certainty available to parties through a commercially reasonable procedure also provides an incentive for commercially reasonable procedures to be developed and deployed in commerce. The development of Internet and similar technology for commerce will occur through numerous, private commercial choices that establish a viable marketplace. The provisions of this Section provide at least limited support for that development.

4. Subsection (a)(3) deals in a limited way with the effect of a failure of one party to conform to an existing attribution procedure that is commercially reasonable (the effect of a failure to comply with a procedure that is not commercially reasonable is treated in Section 2B-114). Where the sender complies, but the recipient does not, the sender is absolved from any liability under contract law for an error that would have been detected through compliance.