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This is an unofficial draft of Article 2B from April 15, 1998. For the current official version, see the University of Pennsylvania Law School (Official NCCUSL) site at http://www.law.upenn.edu/library/ulc/ulc.htm SECTION 2B-204. OFFER AND ACCEPTANCE; ELECTRONIC AGENTS. In an automated transaction, the following rules apply: (1) A contract may be formed by the interaction of electronic agents. A contract is formed if the interaction results in the electronic agents engaging in operations that confirm or indicate the existence of a contract (2) A contract may be formed by the interaction of an electronic agent and an individual if the individual has reason to know that the individual is dealing with an electronic agent and the individual takes actions that: (A) the individual knows or should know will cause the agent to perform, provide benefits, or permit use of the information, the informational property rights, or the access that is the subject of the contract; or (B) are clearly indicated as constituting acceptance regardless of other expressions or actions by the individual to which the electronic agent cannot react. (3) The terms of a contract formed under paragraph (2) are determined under Section 2B-207 or 2B-208, as applicable, but do not include terms provided by the individual in a manner to which the electronic agent could not react. (4) A party is bound by the operations of its electronic agent even if no individual was aware of or reviewed the agent's actions or their results. Definitional Cross Reference: "Agreement". Section 1-201. "Automated transaction". Section 2B-102. "Contract". Section 2B-102. "Electronic agent". Section 2B-102. "Information". Section 2B-102. "Party". Section 1-201. "Record". Section 2B-102. "Term". Section 1-201. Committee Vote: a. Approved in principle. (September, 1996). Reviewed without change. (Nov. 1997) Reporter's Notes: 1. Subsection (a) deals with two contexts: 1) interaction between a human and an electronic agent, and 2) an interaction between two electronic agents without human intervention. In both, electronic methodology is in widespread use, but there are questions of under what circumstances agreement is inferred from behavior and of to what terms an electronic agent can agree. The following illustrations, although not within Article 2B scope, illustrate one aspect of the issue: Illustration 1. Tootie is an electronic system for placing orders for Home Shopping Network. When you dial the number, a voice comes on line instructing you to indicate your card number, the item number you will purchase, the quantity, your location, and other items. You indicate this by striking keys and numbers on your telephone. Tootie automatically orders shipment. Ray calls Tootie and, after entering his card number, verbally states to Tootie that he will only accept the software being order if there is a 120 day no questions return policy. Otherwise: "I don't want the damn things." Tootie orders shipment. There is a contract. The verbal addition or condition is ineffective. Stating conditions clearly outside the capability of the electronic agent to make a reaction does not eliminate the agreement reached by taking the steps needed to initiate the shipment. Similarly, the verbal terms should be ineffective to alter the agreement since the Tootie system could not respond to the verbal condition. Illustration 2. User dials the ATT information system. A computerized voice states: "If you would like us to dial your number, strike "1", there will be an additional charge of $1.00. If you would like to dial yourself, strike "2". User states into the phone that he will not pay the $1.00 additional charge, but would pay .50. Having stated his conditions, User strikes "1". The computerized voice asks User to state the name of the recipient of the call. User states "Jane Smith". The ATT computer dials Jane Smith's number, having located it in the database. Under the circumstances, User's "counter offer" is ineffective; it could not be reacted to by the ATT computer. The charge for the use should include the additional $1.00. 2. As between electronic agents operations that signify a contract form an enforceable contract. The automated agents were selected or used by the parties to achieve these results and Article 2B acknowledges the efficacy of the choice in law. See discussion in notes to Section 2B-202. The agents act within parameters set by their programming and selected by their principals. The terms of the contract are determined as indicated, allowing for prior agreement, terms reflecting "consensus" of the two agents, and default rules. Terms in one agent's system that are not capable of being reacted to by the other are not part of the contract. |