ARTICLES
existence of the postal rule.24 With the increased usage of emails, it has been understood that there is a complex system behind electronic communications between emails being sent out until they have reached the inbox of its intended recipient. The general breakdown of the flow in electronic communication is when the email being sent will stay in the sender’s outbox before it goes into the servers of the internet, finally reaching the inbox of the recipient that can be downloaded when the recipient is connected. Hence, some argue that the servers seem to act like a postal service for the email and that there is enough similarity to consider the postal rule to apply in these instances as well, but has not been accepted or addressed directly by the courts.25 It has been generally recognised that traditional definitions of instantaneous communications were not instantaneous as conceived, with the issues of having different servers for emails as well as the engaging of third party communication management.
principles as mentioned in Thomas. However, contract formation through emails has been accepted as common phenomena of the digital age and without a clear idea, it could bring about possible discrepancies between parties during the period of contract formation. An important question left unanswered is when is acceptance effective? The answer can be divided into upon dispatch or upon receipt.27 This question’s importance cannot be emphasised further due to how it affects the formation of the contract and the terms inside. The problem arose when discussions about these issues through conventions or model laws provide no definition for which timing validated the acceptance. Both timings are significantly different with one being the time when the offeree sent the acceptance, the other being when the acceptance appeared in the offeror’s inbox and the need to consider a possible delay between both events.
The issue continues to be problematic, as the English courts have not provided a preference of any rule or definition. The few explanations that the courts have provided is illustrated in Brinkibon where other judges agreed with Lord Wilberforce’s statement that there is no universal rule that will cover all situations but there is a need to look at each situation on its own. With this development, it provides a large grey area for the postal rule in emails as some argue for the rule to apply due to similarities between the server system in emails to postal service26 while some dispute that extending would be too much, which will bring about further uncertainty.
Different countries adopted different interpretations when addressing the questions regarding the validity of the rule and the possible legal obligations that follow. This led to a type of consolidation on an international scale where the United Nations Commission on International Trade Law (UNCITRAL) provided a model law that countries could adopt into their jurisdiction if they wished to.28 The model law seems to mirror the position of the postal rule with the decision in Brinkibon where an email is deemed as received when it appears in the offeror’s inbox and can be retrieved for reading. It differs from the rule, as its effectiveness does not begin when the email has been sent but as long as it has successfully gone through the Internet servers and appeared in the recipient’s inbox that would conclude the contract formation. The model law reflects an acceptance of the intricacies of electronic
Due to the lack of direction, it has been generally accepted that the courts will continue to follow Brinkibon and look at sound business
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24 Capps Deveral, Electronic mail and the postal rule (International Company & Commercial Law Review, Issue 15(7), 2004) 25 ibid 26 Cummiskey Siobhan, The Effect of the Electronic Commerce Act 2000 on the Operation of the Postal Rule (Irish Business Law Quarterly Vol 1 Issue 4, 2006)
Postal Rule in International Commerce
27 Mik Eliza, The Effectiveness of Acceptances Communicated by Electronic Means, Or – Does the Postal Acceptance Rule Apply to Email (Journal of Contract Law, 26(1) 68-96, 2009) 28 United Nations Commission on International Trade Law, Model Law on Electronic Commerce 1996, Article 13