- Providing for Autonomous Electronic Devices in the Electronic Commerce Act 1999
- I. The Technological Promise of Autonomous Electronic Devices
- II Doctrinal Difficulties Associated with Automated Electronic Commerce
- III. Curing Doctrinal Difficulties by Treating Electronic Devices as Independent Legal Persons
- IV. Curing Doctrinal Difficulties by Treating Electronic Devices as Extensions of Human or Corporate Interaction
- V. Curing Doctrinal Difficulties by Treating Electronic Devices As Agents
- VI. Summary of Recommendations
- All Pages
1 N.R. Jennings & M. Wooldridge, “Applications of Intelligent Agents” in Agent Technology (Heidelberg: Springer-Verlag, 1998) 3 at 13.
2 Or “autonomous agents” or “mobile agents” or some other permutation of these phrases. Up until recently, the legal literature has tended to avoid this terminology so as not to confuse these agents with the common law notion of agency. Consequently, software agents are sometimes referred to in the legal literature as “electronic devices.” American drafters of electronic commerce legislation have recently given up on this and have adopted the phrase “electronic agents”, which has been described in the Reporter’s Notes of the Uniform Electronic Transactions Act, infra note 12 as a “near term of art”.
3 See e.g. P. Maes, “Agents that Reduce Work and Information Overload” (1994) 37:7 Communications of the ACM 30; B. Hermans, Intelligent Software Agents on the Internet: An Inventory of Currently Offered Functionality in the Information Society and a Prediction of (Near-)Future Developments ( Ph.D. Thesis, Tilburg University 1996), (1997) 2:3 First Monday, online: First Monday <http://www.firstmonday.dk/issues/issue2_3/index.html> (last modified: 11 December 1998).
4 Hermans, ibid c.1.
5 K. Runyon & D. Stewart, Consumer Behaviour, 3rd ed. (Merrill Publishing Co., 1987); J. Engel & R. Blackwell, Consumer Behaviour, 4th ed. (CBS College Publishing, 1982).
6 I. Terpsidis et al., “The Potential of Electronic Commerce in Re-Engineering Consumer-Retail Relationships Through Intelligent Agents” in J.-Y. Roger, B. Stanford-Smith, and P. Kidd eds., Advances in Information Technologies: The Business Challenge (IOS Press, 1997).
7 See e.g. A. Chavez, et al., “A Real-Life Experiment in Creating an Agent Marketplace” (Proceedings of the Second International Conference on the Practical Application of Intelligent Agents and Multi-Agent Technology (PAAM’97), London, UK, April 1997), online: MIT Media Laboratory <http://ecommerce.media.mit.edu/papers/paam97.pdf> (last modified: 25 March 1998).
8 Maes, supra note 3.
9 See e.g. L. Davies, “Contract Formation on the Internet: Shattering a Few Myths” in L. Edwards & C. Waelde, eds., Law & The Internet (Oxford: Oxford-Hart Publishing, 1997) 97; T. Allen & R. Widdison, “Can Computers Make Contracts?”(1996) 9 Harv. J. Law & Tech. 25 ; C. Karnow, “Liability For Distributed Artificial Intelligences”(1996) 11 Berkeley Tech. L. J. 147.
10 Model Law on Electronic Commerce, GA Res. 51/162, UN GAOR, 51st Sess., UN Doc. A/51/628, (1997) at IA6 [hereinafter Model Law], online: UNCITRAL <http://www.un.or.at/uncitral/englishtexts/electcom/ml-ec.htm> (last modified: 29 January 1999). The spirit underlying the Model Law is exemplified by the following passage from its “Guide To Enactment”:
The objectives of the Model Law, which include enabling or facilitating the use of electronic commerce and providing equal treatment to users of paper‑based documentation and to users of computer‑based information, are essential for fostering economy and efficiency in international trade. By incorporating the procedures prescribed in the Model Law in its national legislation for those situations where parties opt to use electronic means of communication, an enacting State would create a media‑neutral environment.
12 Uniform Electronic Transactions Act (draft 19 March 1999) [hereinafter UETA], online: National Conference of Commissioners of Uniform State Laws <http://www.law.upenn.edu/library/ulc/uecicta/eta399.htm> (last modified: 24 April 1999)
13 Uniform Computer Information Transactions Act (draft 7 April 1999) [hereinafter UCITA], online: Uniform Law Commissioners <http://www.law.upenn.edu/library/ulc/ucita/citam99.htm> (last modified: 2 June, 1999).
14 Other proposed and enacted legislation are considered in lesser detail.
15 T. Selker cited in P. Janca “Pragmatic Application of Information Agents” BIS Strategic Decisions, Norwell, United States, May 1995.
16 See e.g. Hermans, supra note 3; Jennings & Wooldridge, supra note 1 at 4-5; M.R. Genesereth & S.P. Ketchpel, “Software Agents”(1994) 37:7 Communications of the ACM 48; J.E. White, “Mobile Agents White Paper” (1997-1998) [unpublished], online: General Magic <http://www.genmagic.com/technology/techwhitepaper.html> (last modified:18 September 1998); J.S. Rosenschein & M.R. Genesereth, “Deals Among Rational Agents” (Proceedings of the Ninth International Joint Conference on Artificial Intelligence (IJCAI-85), Los Angeles, 1994).
17 P. Fingar, “A CEO’s Guide to eCommerce Using Object-Oriented Intelligent Agent Technology” (June 1998) at 20, online: <http:home1.gte.net/pfingar/eba.htm> (last modified: 30 November 1998).
19 A Gilbert, et al. “The Role of Intelligent Agents in the Information Infrastructure” (1995) [unpublished] cited by Hermans, supra note 3 at c.2, online: <http://activist.gpl.ibm.com:81/WhitePaper/ptc2.htm>.
20 Maes, supra note 3.
21 Ibid. at 35.
23 It should be noted that intelligent agent technology has a number of other commercial and industrial applications including: information management, business process management, healthcare management, patient monitoring, gaming technologies, interactive theater, product manufacturing, air traffic control, etc.. See Jennings & Wooldridge, supra note 1 at 11-17 and Hermans, supra note 3 at 19-27.
24 PersonaLogic URL: <http://www.personalogic.com>
25 Firefly URL: <http://www.firefly.com/>.
26 See U. Shardanand & P. Maes, “Social Information Filtering: Algorithms for Automating ‘Word of Mouth’”(Proceedings of the Computer-Human Interaction Conference (CHI95), Denver, Co., May 1995).
27 R. Guttman , A.G. Moukas & P. Maes, “Agent-Mediated Electronic Commerce: A Survey” (1998) 13 The Knowledge Engineering Review 147 at 149.
28 BargainFinder URL: <http://bf.cstar.ac.com/bf>.
29 Jango URL: <http://www.jango.com/>.
30 See R. Doorenbos, O. Etzioni & D. Weld, “A Scalable Comparison-Shopping Agent for the World Wide Web” (Proceedings of the First International Conference on Autonomous Agents, Marina Del Rey, C.A., February 1997).
31 AuctionBot URL: <http://auction.eecs.umich.edu/>. See also P Wurman, M. Wellman & W. Walsh, “The Michigan Internet AuctionBot: A Configurable Auction Server for Human and Software Agents” (Proceedings of the Second International Conference on Autonomous Agents, May, 1998).
32 See Guttman et al. supra note 27 at 4.
33 Kasbah URL: <https://kasbah.media.mit.edu/>.
34 See Guttman et al. supra note 27 at 4.
35 Supra note 7 at 7.
36 Ibid. At the time of the original real-life experiment, the “Better Business Bureau” mechanism was not yet part of the system design. Consequently, the so-called “ratification”of agent-mediated transactions was left to the bona fides of their human users without the imposition of external norms.
37 T@T URL: <http://ecommerce.media.mit.edu/tete-a-tete/>.
38 Like Kasbah, described above, this negotiation takes the form of multi-agent, bilateral bargaining. But instead of using simple raise or decay functions, Tete-a-Tete follows what has been characterized as an “argumentative” style of negotiations. See e.g. S. Parsons, C. Sierra & N.R. Jennings, “Agents that Reason and Negotiate by Arguing” (1998) 8 Journal of Logic and Computation 261.
39 R. Guttman & P. Maes, “Agent-Mediated Integrative Negotiation for Retail Electronic Commerce”(Proceedings of the Workshop on Agent Mediated Electronic Trading (AMET’98), Minneapolis, Minnesota, May, 1998), online: MIT Media Laboratory <http://ecommerce.media.mit.edu/papers/amet98.pdf> (last modified: 25 March 1999).
40 G. P. Zachary, Cyber-Seers: Through a Glass, Darkly cited by Hermans, supra note 3 at c. 6.
41 See Hermans supra note 3 at 54.
42 E.g. will Agent Communication Language [ACL] used in conjunction with Knowledge Interchange Format [KIF] and Knowledge Query and Manipulation Language [KQML] remain the standard?
43 I.e. a single, all-encompassing system which handles all transactions and functions.
44 I.e. a series of separate systems within which certain kinds of agents interact with other agents of the same kind.
45 I.e. a standard that enables an intelligent agent to engage in cooperative activities with other agents such as information searches. The Firefly technology described supra, note 25 operates on a cooperative paradigm.
46 See generally J.S. Rosenschein & G. Zlotkin, Rules of Encounter: Designing Conventions for Automated Negotiation Among Computers (Cambridge, Mass.: MIT Press, 1994).
47 R. Guttman & P. Maes. "Cooperative vs. Competitive Multi‑Agent Negotiations in Retail Electronic Commerce" (Proceedings of the Second International Workshop on Cooperative Information Agents (CIA’98), Paris, France, July 1998), online: MIT Media Laboratory <http://ecommerce.media.mit.edu/papers/cia98.pdf> (last modified: 25 March 1999).
48 To partake in Kasbah, one must be registered as a member of the system.
49 J. E.White “Mobile Agents” in J.M. Bradshaw, ed., Software Agents (Menlo Park, Calif.: AAAI Press; Cambridge, Mass.: MIT Press, 1997).
50 See e.g. Model Interchange Agreement for the International Commercial Use of Electronic Data Interchange, UN/ECE Rec. 26, TRADE/WP.4/R11133/Rev.1, (1995), online: UNECE <http://www.unece.org/trade/rec/rec26en.htm> (last modified: 20 April 1998).
51 Supra note 49 at 467-69.
52 P. Panurach, “Money in Electronic Commerce: Digital Cash, Electronic Fund Transfer, and Ecash” 39:6 Communications of the ACM 45; S. L. Lelieveldt, "How To Regulate Electronic Cash: An Overview of Regulatory Issues and Strategies" (1997) 24 Amer. Univ. Law Rev.1163; R..L.. Field, "1996: Survey of the Year's Developments in Electronic Cash Law and the Laws Affecting Electronic Banking in the United States" (1997) 46 Amer. Univ. Law Rev. 967; W. Powell, "Ecash: The New Coin of the World" 32:5 CGA Magazine (May 1998) 54; S. Chinoy, “Electronic money in Electronic Purses and Wallets” (1997) 12 B.F.L.R. 15; B. Crawford, “Is Electronic Money Really Money?” (1997) 12 B.F.L.R. 399.
53 See P. Chavez & P. Maes, “Kasbah: An Agent Marketplace for Buying and Selling Goods”(Proceedings of the First International Conference on the Practical Application of Intelligent Agents and Multi-Agent Technology (PAAM’96), London, UK, April 1996), online: MIT Media Laboratory <http://ecommerce.media.mit.edu/papers/paam96.pdf> (last modified: 25 March 1999).
55 See D. Lloyd, “Frankensteins’s Children: Artificial Intelligence and Human Value” (1985) 16 Metaphilosophy 307; J. H. Moor, “Are There Decisions Computers Should Never Make?” (1979) 1 Nature & Sys. 217; J. W. Snapper, “Responsibility For Computer Based Errors” (1985) 16 Metaphilosophy 289.
56 Supra note 53 at 6-7.
57 C. Karnow, “Liability for Distributed Artificial Intelligences” (1996) 11 Berkeley Tech. L. J. 147 at 161-62.
58 The following passage from Hecht, Herbert and Myron, "Software Reliability in the System Context" (1986)12 IEEE Transactions on Software Engineering 51 at 55 offers a general prediction of the number of faults found in the average piece of software based on an examination of programs in use:
Number of lines of code: 1 million
- number of faults in the initial software [2 percent of the total, based on a widely reported average]: 20,000
- faults remaining after testing (assuming that 90 percent of the faults are founded fixed]: 2000
- numbers of failures per year [10 percent of the faults, based on experience]: 200
- faults corrected after failures: 200
- remaining faults: 1800
- lines of code added or changed per year routine maintenance [estimated at 10 percent per year or]: 100,000
- number of faults added to system [2 percent of new code]: 2000
- number of new faults remaining after debugging new code [assuming 90 percent of new faults removed]: 200
- number of faults not discovered in previous year: 1800
- total number of faults: 2000: expected failure rate per year [based on prior failure assumption]: 200
59 D. R. Hofstadter, Fluid Concepts and Creative Analogies: Computer Models of the Fundamental Mechanisms of Thought (New York: Basic Books,1995) at 226.
60 F. Hayes-Roth & N. Jacobstein, “The State of Knowledge-Based Systems” (1994) 37:3 Communications of the ACM 27 at 35.
61 P. Wayner, “Agents Away” Byte 19:5 ( May 1994) 113 at 116.
62 See Karnow supra note 57 at 171.
63 G.J. van Opdorp & R.F. Walker "A Neural Network Approach to Open Texture" in H. W. K. Kaspersen & A. Oskamp, eds., Amongst Friends in Computer and Law: A Collection of Essays in Remembrance of Guy Vandenberghe (Deventer: Kluwer Law & Taxation Publishers, 1990) 279 at 305.
64 G.H.L. Fridman, The Law of Contract in Canada, 3rd ed. (Scarborough: Carswell, 1994) at 138.
65 Ibid. at 26.
66 J.G. Starke, N.C. Seddon & M.P. Ellinghaus, eds., Cheshire and Fifoot’s Law of Contract, 6th Australian ed. (Sydney: Butterworths, 1992) at 545.
67 Supra, note 64 at 158.
68 S. M. Waddams, The Law of Contracts, 3rd ed. (Toronto: Canada Law Book, 1993) at 447.
70 The capacity issue, as conceived by Waddams, would become extremely complicated in a world where computers are said to have the capacity to contract. Neural net programming, discussed above in Part I, raises the spectre of vast inequalities between the various competing electronic devices. Intelligent agent technology is bound to grow in power and sophistication to the point where the more advanced agents will likely be able to predict the actions and thus take advantage of older, more obsolete versions. It is also likely that only large corporations and wealthy individuals will have access to state of the art agent technology. If the law of contract is to protect weaker parties, it might have to somehow take steps to level the playing field. Should situations such as this be conceived of as analogous to that of sophisticated parties contracting with the infirm?
71 Fridman, supra note 64 at 5.
72 See e.g. C. Fried, Contract as Promise: a Theory of Contractual Obligation (Cambridge Mass.:Harvard University Press, 1981); Fuller & Purdue, “The Reliance Interest in Contract Damages” (1936) 46 Yale LJ 52. For an exhaustive criticism of this point of view, see P.S. Atiyah, The Rise and Fall of Freedom to Contract (Oxford:Clarendon Press, 1979); R.K.L. Collins, ed., The Death of Contract by Grant Gilmore (Columbus:Ohio State University Press, 1995).
73 M. Minsky, “Will Robots Inherit the Earth?” Scientific American 271:4 (October
1994) 108; W. D. May, Edges of Reality: Mind vs. Computer (New York: Insight
Books, 1996); G. Simons, ed., Are Computers Alive? (Boston: Thetford Press, 1983) c.6; F. George, Machine Takeover (Oxford: Pergamon Press, 1977) at 93‑113.
74 Anon (1478), Y.B. 17 Edw IV, Pasch fol. 1, pl. 2.
75 Kennedy v. Lee (1817), 3 Mer 441 at 451; 36 ER 170 at 174; [1814-23] All ER Rep 181 at 185-6.
76 (1871) L.R. 6 Q.B. 597 at 607.
77 P.S. Atiyah, “Contracts, Promises and the Law of Obligations” (1978) 94 LQR 193 at 203.
78 Whether we should allow persons to escape from contractual liability when they employ electronic devices to deceive others by representing a transaction as though it is between two persons is quite another matter, one that will be further considered under the heading of Disclosed and Undisclosed Principals in Part V below.
79 See e.g. Karnow, supra note 57; L. Wein, “The Responsibility of Intelligent Artifacts: Toward an Automation Jurisprudence”(1992) 6 Harv. J. L. & Tech. 103; L. Solum, “Legal Personhood For Artificial Intelligences”(1992) 70 N.C.L. Rev. 1231.
80 J.C.Gray, The Nature and Sources of the Law (New York: Macmillan, 1921) at 27.
81 Salomon v. Saloman,  A.C. 22, 66 L.J.Ch.35, 75 L.T. 426, 35 W.R. 193, 41 Sol. Jo. 63 (Eng. H.L.). See, e.g., D. Millon, “Theories of Corporation” 2 Duke L.J. 201 (1990).
82 See e.g. supra note 80 at 46-48.
83 Bumper Development Corp. v. Commissioner of Police,  1 W.L.R. 1362 (C.A.).
84 See Gray, supra note 80 at 50-51.
85 See e.g. T. Allen & R. Widdison, “Can Computers Make Contracts?” (1996) 9 Harv. J. Law & Tec 25 at 35.
86 See e.g. D.C. Dennett, Consciousness Explained, 1st ed. (Boston; Toronto: Little, Brown and Co., 1991) at 33-39; R.S. Jackendoff, Consciousness and the Computational Mind (Cambridge, Mass.: MIT Press, 1987) at 275-327; C. McGinn, The Problem of Consciousness: Essays Toward a Resolution (Oxford, UK; Cambridge, Mass., USA: B. Blackwell, 1991) at 202-13.
87 See Allen & Widdison, supra note 85 at 36.
88 Although this does not entail that we cannot attribute responsibility to these devices. See e.g. J.W. Snapper, “Responsibility for Computer Based Errors” (1985) 16 Metaphilosophy 28; W. Bechtel, “Attributing Responsibility to Computer Systems” (1985) 16 Metaphilosophy 296; L Wein, supra note 79.
89 A.M. Turing, “Computing Machinery and Intelligence” (1950) 59 Mind 433. See also J.R. Searle, Minds, Brains and Science (London: British Broadcasting Corporation, 1984) at 28-41.
90 Allen & Widdison, supra note 85 at 39.
92 Karnow, supra note 57 at 189.
93 Ibid. In this respect, the systemic choice to adopt agent technology invokes a cost-benefit analysis similar to our choice to drive cars: the convenience afforded by both technologies are adopted in spite of a known risk of harm.
94 Wein considers this possibility, supra note 79. Such a description is reminiscent of slavery and perhaps the early master-servant relationship, concepts that will be investigated in Part V below.
95 Karnow, supra note 57 at 191.
96 Allen & Widdison, supra note 85 at 42.
97 Karnow, supra note 57 at 193-94.
98 To be fair to Karnow, his impetus for implementing a registry has more to do with his concern for issues arising from tort liability (specifically, the difficulties associated with proving causation in negligence) than with contractual liability. Karnow may be right to think that there will come a time when a registry is needed to deal with the negligence claims associated with the malfunction of computer equipment. But that day has not yet arrived. Even less urgent is the need for such a system to deal with computer malfunctions that generate unintended agreements.
99 Imagine the expense associated with an international registry. Who would govern it? Where and how would disputes be resolved? Etc..
100 Allen & Widdison, supra note 85 at 43.
101 Model Law, supra note 10; UETA, supra note 12; UCITA, supra note 13. See also the Electronic Transactions Bill 1999 (Draft) [hereinafter ETB], online: Windows on the Law, Australia Attorney General’s Department <http://www.law.gov.au/ecommerce/> (last modified: 21 April 1999); Electronic Transactions Act 1998 (enacted July 1998), online: Government of Singapore <http://www.cca.gov.sg/eta/index.html> (last modified: 11 June 1999).
102 See Allen & Widdison, supra note 85 at 43. For a general discussion of legal fictions see I.R. Kerr, Legal Fictions (Ph.D. Dissertation, The University of Western Ontario 1995) [unpublished].
103 See Reporter’s Note 35, Model Law, supra note 10.
104 See Reporter’s Note under Section 102(5) Electronic Device, UETA (July 24, 1998 Draft), online: National Conference of Commissioners of Uniform State Laws <http://www.law.upenn.edu/library/ulc/uecicta/98am.htm> (last modified: 24 April 1999).
105 Ibid. (emphasis added).
106 See Reporter’s Note under Section 202 Uniform Commercial Code-2B (March 10, 1998 Draft), online: National Conference of Commissioners of Uniform State Laws <http://www.law.upenn.edu/library/ulc/ucc2/2b398.htm> (last modified: 23 April 1999).
107 Supra note 10.
108 Strictly speaking, it is incorrect to characterize the code produced by UNCITRAL as legislation. Rather, it is a Model Law which was drafted to facilitate the development of uniform legislation to be adopted by member States.
109 Typical examples include the requirement that certain agreements must be “in writing” or “signed.”
110 Supra note 10.
111 Model Law, art. 2, supra note 10 (emphasis added).
112 According to Article 2 of the Model Law, "‘Intermediary’, with respect to a particular data message, means a person who, on behalf of another person, sends, receives or stores that data message or provides other services with respect to that data message.
113 Model Law, “Guide to Enactment” at para. 35, supra note 10.
114 Model Law, art. 13, supra note 10 (emphasis added).
115 According to Article 2 of the Model Law, the addressee of a data message “means ... the person to whom the originator’s message was dispatched.”
116 In essence, these are circumstances in which the addressee complied with an agreed upon authentication procedure.
117 See the Model Law, “Guide to Enactment” at para. 35, supra note 10.
119 UETA, supra note 12.
120 Ibid. (emphasis added). The Reporter’s Notes indicate that the most recent draft of this Act favours use of the term electronic agent over the term electronic device (which had been used in previous drafts). The motivation behind this change is based largely on the desire for uniformity with UCC-2B (precursor to the UCITA) as well as the recognition that the term electronic agent has become a “near term of art.”
121 UETA, s.113, Reporter’s Notes at para. 3, supra note 12.
122 UETA, supra note 12 (emphasis added).
123 For example, a promise not to use the information for certain prohibited purposes.
124 UETA, supra note 12.
125 UETA, s.114, Reporter’s Notes at para. 3, supra note 12.
127 UETA, supra note 12 (emphasis added).
128 This is indicated by the opening words of the section: “Unless otherwise agreed...”
129 UCITA, supra note 13.
130 The same statement can still be found in UCITA, s.102, Reporter’s Notes at para.18, supra note 13.
131 UCITA, supra note 13 (emphasis added).
132 UCITA, supra note 13 (emphasis added).
133 UCITA, supra note 13 (emphasis added).
134 Further discussion of unpredicted electronic agent malfunctions will be found at 43-46, below. See also supra note 158 and accompanying text.
135 UCITA, supra note 13.
136 H.D. Rafter et al., "Streaming into the Future: Music and Video on the Internet" Patent, Copyrights, Trademarks, and Literary Property Course Handbook Series (New York: Practising Law Institute, 1999) at 547; N.A. Bloom, “Protecting: Copyright Owners of Digital Music ‑ No More Free Access to Cybertunes" (1998) 45 Journal of the Copyright Society of the USA. 179; R. Harris, "Consumer Friendly Music Technology Threatens Industry Profits" Nando Times (Dec. 11, 1998) online: Nando Media <http://www.techserver.com/newsroom/ntn/info/121198/info6_2962_noframes.html> (last modified: 11 December 1998);
J. Alderman, "Composing Music's Future Form" Wired (July 2, 1998), online: Wired <http://www.wired.com/news/news/culture/story/13444.html> (last modified: 11 June 1999).
137 UCITA, supra note 13 (emphasis added).
138 Presumably, there is no reason to think that the manifestation of assent could refer to an offer as well.
139 Like UETA, if the parties have adopted a commercially reasonable attribution procedure, the provision operates against the nonconforming party:
SECTION 216. ATTRIBUTION PROCEDURE FOR DETECTION OF CHANGES AND ERROR; EFFECT OF USE.
If the parties use a commercially reasonable attribution procedure to detect errors or changes in an electronic record, the following rules apply:
If the sender has conformed to the procedure but the other party has not and the nonconforming party would have detected the change or error had that party also conformed the sender is not bound by the change or error.
“Attribution procedure” is defined in paragraph 102 (5) as a “procedure established by law, administrative rule, or a procedure otherwise adopted by the parties, to verify that an electronic event is that of a specific person or to detect changes or errors in the information. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, callback or other acknowledgment procedures, or any other procedures that are reasonable under the circumstances.” “Commercial reasonableness” is described in section 214.
SECTION 214. COMMERCIAL REASONABLENESS OF ATTRIBUTION PROCEDURE.
“The commercial reasonableness of an attribution procedure is determined by the court. In making this determination, the following rules apply:
An attribution procedure established by statute or regulation is commercially reasonable for transactions within the coverage of the statute or regulation.
Except as otherwise provided in paragraph (1), commercial reasonableness is determined in light of the purpose of the procedure and the commercial circumstances at the time the parties agree to or adopt the procedure.
A commercially reasonable attribution procedure may use any security device or method that is reasonable under the circumstances.”
140 UCITA, supra note 13.
141 UCITA, supra note 13 (emphasis added). The rest of section 206 serves to prevent a human being from altering or vitiating a contract by engaging in conduct to which the electronic agent cannot react.
(b) A contract may be formed by the interaction of an electronic agent and an individual acting on the individual’s own behalf or for another person. A contract is formed if the individual takes actions that the individual is free to refuse to take or makes a statement that the individual has reason to know will:
(1) cause performance, provision of benefits, or allowance of the use or access that is the subject of the contract, or result in instructions to a person or an electronic agent to do so; or
(2) indicate acceptance or an offer, regardless of other expressions or actions by the individual to which the individual has reason to know the electronic agent cannot react.
The terms of a contract formed under subsection (b) are determined under Section 210 or 211, but do not include terms provided by the individual if the individual had reason to know that the electronic agent could not react to the terms as provided.
142 UCITA, s.111, Reporter’s Notes at para. 3, supra note 13.
143 UCITA, supra note 13.
144 E.g. Singapore’s ETA and Australia’s ETB, supra note 101. For more information regarding recent initiatives see “Summary of Electronic Commerce and Digital Signature Legislation”, online: McBride Baker & Coles <http://www.mbc.com/ds_sum.html> (last modified: 8 June 1999); “Digital Signature Law Survey”, online: Simone van der Hof <http://cwis.kub.nl/~frw/people/hof/DS‑lawsu.htm> (last modified: May 1999); “What’s New”, online: Internet Law and Policy Forum <http://www.ilpf.org/> (last modified: 9 June 1999).
145 ETA, supra note 101.
146 Section 2 provides relevant definitions, section 13 prescribes an attribution rule, section 18 provides a series of presumptions relating to secure records and signatures, and paragraph 6 of section 13 addresses transmission errors.
147 EC, Proposal for a European Parliament and Council Directive On Certain Legal Aspects Of Electronic Commerce In The Internal Market, COM (1998) 586 final [hereinafter Proposal], online: Commission of the European Communities <http://www.ispo.cec.be/ecommerce/docs/enWord6.doc> (last modified: 18 November 1998).
149 Ibid. Annex at c.1 s.3 art.9.
150 ETB, supra note 101.
151 ETB, supra note 101 (emphasis added).
152 I.e., Model Law, art. 13, supra note 10.
153 ETB, supra note 101. Unfortunately, the “Explanatory Paper” does not indicate why Model Law, Article 13 was rejected in favour of the current provision.
154 See Allen & Widdison, supra note 85 at 43. For a general discussion of legal fictions, see I.R. Kerr, supra note 102.
155  2 K.B. 394.
156 See P. Atiyah, Essays on Contract, (Toronto: Oxford University Press, 1986) c.2. See also R. Samek, “The Objective Theory of Contract and the Rule in L’Estrange v. Graucob” (1974) 52 Can. Bar. Rev. 351.
157 See Allen & Widdison, supra note 85 at 51.
158 Since the third party with whom the electronic device has transacted is not privy to any contract that might exist between the developer of the electronic device and the person using it, such liability would not be contractual in nature. For a general discussion of tort liability in this context, see J. J. Fossett, “The Development of Negligence in Computer Law” (1987) 14 N. Ky. L. Rev. 289; G.S. Takach, Computer Law (Toronto: Irwin Law, 1998) 288-304.
159 Because of the attribution rule, the person using the device will not be said to have been mistaken. Only if the device was recognized as an intermediary would the law of mistake apply.
160 See Wein, supra at note 79 at 110-111.
161 Institutiones Iustiniani 2. 14. 2.; 3. 17. pr.; Novellae Theodosius 17. 1. 2.: quasi nec personam habentes. See also W.W. Buckland, The Roman Law of Slavery (New York: AMS Press, 1962) at 2-5.
162 As was generally the case with slaves in the southern United States. “Slaves, from their nature, are chattels, and were put in the hands of executors...declaring them to be personal estate.”: Walson’s Ex’r v. Payne, Fall T., 1794; Wash. Rep., 1.8.; Hawkins Adm’r. v. Craig, 6 Monroe’s Rep. 254. See generally B. Hollander, Slavery in America: Its Legal History (London: Bowes & Bowes, 1962).
163 Institutiones Iunstininai, Tit. XVII De Stipulatione Servorun; Institntiones Iustiniani, D. xlv. 1. 130; See also Hadley, Introduction to Roman Law, In Twelve Academical Lectures (New York: D. Appleton and Company, 1873) at 114.
164 Digesta Iustiniani 4. 4. 3. 11, 23.; See also Buckland, supra note 161 at 158.
165 See Buckland, supra note 161, c. 6-9; R. Sohm, The Institutes: A Textbook of the History and System of Roman Private Law (New York: Augustus M. Kelly, 1970), Part II: The System of Roman Private Law, Book I: The Law of Persons, c.1, ss. 32 (Slavery). For a general discussion of the historical development of legal fictions, see I.R Kerr, c.1, supra note 102.
166 For example, a slave might carry on a bank, with or without orders, the master’s rights varying according as it was or was not with the peculium: Digesta Iusintiani 2. 13. 4. 3.; A slave might be a member of a firm: Digesta Iustiniani 17. 2. 63. 2.; See Buckland, supra note 161 at 131.
167 See P. Maes, supra, note 3.
168 F.M.B. Reynolds, Bowstead & Reynolds on Agency, 16th ed. (London: Sweet and Maxwell, 1996) at 3.
169 The external aspects of agency are discussed in the text surrounding note 175.
170 G.H.L. Fridman, Fridman’s Law of Agency, 6th ed. (London: Butterworths, 1990) at 50-51. See also Smally v. Smally (1700), 1 Eq. Cas. Abr. 6, 283; Re D’ Angibau (1880), 15 Ch. D. 228 at 246.
171 Commonwealth Trust Co. v. Dewitt (1974), 40 D.L.R. (3d) 113.
172 Bowstead & Reynolds, supra at note 168 at 41. See also Müller-Freienfels (1957) 6 Am. J. Comp. L. 165 at 180-81; Norwich and Peterborough B.S. v. Steed,  Ch. 116 at 128.
173 Given that agents have rights and obligations, and given that the concept of “authority”sets limits on the potential liability of a principal, it is hyperbole to say that the agent is merely an instrument and that the principal bears all of the risk associated with inadequate representation.
174 Assuming, of course, that the principal has contractual capacity.
175Bowstead & Reynolds, supra note 168 at 3-4 (emphasis added).
176 For the sake of clarity, italics and ‘single quotation marks’ are meant to indicate unconventional uses of the terms agent, principal, authority, agency, etc. in the context of electronic commerce.
177 Bowstead & Reynolds, supra note 168 at 8.
178 Keeping in mind the fact that such a transaction might be further complicated by the use of an electronic device on the other end as well.
179 Fridman, supra note 170 at 15.
180 See Bowstead & Reynolds, supra note 168 at 6.
181 Fridman, supra note 170 at 99.
182 Bowstead & Reynolds, supra note 168 at 166-67.
183 That is, the internal aspects of the agency relationship (i.e., the relationship between the principal and agent) are not relevant to electronic commerce.
184 This example is in part borrowed from Bowstead & Reynolds, supra note 168 at 118.
185 Restatement (Second) Agency §82 (1957).
186 See e.g., S.J. Stoljar, The Law of Agency (London: Sweet & Maxwell, 1961) at 177.
187 See e.g., B.S. Markesinis & R.J.C. Munday, An Outline of the Law of Agency, 3rd ed., (London: Butterworths, 1992) at 67.
188 Per Tindal CJ in Wilson v. Tumman (1843), 6 Man & G 236 at 242.
189 Bowstead & Reynolds, supra note 168, art.15 at 71.
190 Markesnis & Munday, supra note 187 at 68.
191 Bowstead & Reynolds, supra note 168 at 30.
193 Or, at least, his awareness of this possibility might make it unreasonable for him to rely on such attempts.
194 See American Restatement, supra note 185 at comment d.
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