(a) Except as otherwise provided in subsection (b), an electronic message is effective when received even if no individual is aware of its receipt. If an electronic message initiated by a party or an electronic agent evokes an electronic message in response, a contract exists:

(1) when a response signifying acceptance is received; or

(2) if the response consists of furnishing the information or access to the information, when the information or notice of access is received or use is enabled, unless the originating message required acceptance in a different mannerprohibited that form of response.

(b) If the originator of an electronic message requests or has agreed with the addressee that receipt be acknowledged electronically, the following rules apply:

(2) If the message was not expressly conditioned on acknowledgment and acknowledgment is not received within the time specified for receipt or, in the absence of a specified time, within a reasonable time after the message was sent, on notice to the other party, the originator on notice to the other party may:

(Ai) treat the message as no longer expired and ineffective; or

(Bii) specify a further time for acknowledgment and, if acknowledgment is not received within that time, treat the message as expired and ineffective.

(c) Receipt of acknowledgment creates a presumption establishes that the message was received but does not in itself establish that the content sent corresponds to the content received.

a. Approved current subsection (a) in principle.

b. Rejected motion to delete section containing current subsection (b). Vote: 5-6. (February, 1997)

c. Reviewed without substantive change. (April, 1997) (November, 1997)

Reporter's Notes:

1. Subsection (a) adopts a time of receipt rule; rejecting the mail box rule for electronic messages. This rule is also followed in Article 4A (§§ 4A-406, 104(a)).

2. This section does not deal with attribution or liability questions. Questions of attribution are treated in Sections 2B-111-118. For example: if a "response" purports to be from ABC Corp., the message, while effective at a given point in time under this section, does not bind ABC unless the message can be attributed to it under agency law or attribution rules in this Article or common law.

3. In Article 2B, a contract can exist even if no human being reviews or reacts to the electronic message or the information delivered. This adapts traditional theories of consent and agreement to electronic commerce. In electronic transactions, automated systems can send and react to messages without human intervention; when parties choose to use these systems, there is no reason not to allow contract formation. A contract rule that demands direct human assent would inject an inefficient and error prone element in the modern electronic format.

4. Subsection (b) and (c) deal with electronic acknowledgments, providing default rules on the meaning of requiring or requesting acknowledgment. The default rules are limited to acknowledgment of electronic messages. There, the effect of a request for acknowledgment depends on whether the request made the message conditional on acknowledgment or merely requested acknowledge. As a basic principle, the message sender can control the legal effect of its messages if it does so expressly. Acknowledgment, of course, is not necessarily an acceptance; although an acceptance can and often will serve as sufficient recognition of the message to also as acknowledgment. Acknowledgment confirms receipt. In modern electronic systems, this often occurs automatically on receipt of the electronic message in the recipient's system.

5. This section deals with functional acknowledgments. It does not create presumptions other than that an acknowledgment indicates that the message was received. Questions about accuracy of the received message and about time of receipt, content and other issues are not treated. Of course, by agreement the parties can extend this concept to cover such issues.