Académique Documents
Professionnel Documents
Culture Documents
lectronique
professeur titulaire / avocat
directeur du CRDP
crdp / droit / udm
www.gautrais.com
www.twitter.com/gautrais
www.lccjti.ca
Normalement
A B
1386 CCQ. L'change de consentement
se ralise par la manifestation, expresse
ou tacite, de la volont d'une personne
d'accepter l'offre de contracter que lui
fait une autre personne.
Cest aussi...
information + sanction
ou
communication + scurit
communication Exemples
ORAL PAPIER ELECTRONQUE
EX:
Signature connaissement,
preuve, etc.
Original
Comme vu dans 1385 CCQ,
2 principales questions
1 Formalisme
2 eConsentement
1
Formalisme et eContrat
United Nations Convention on the Use of
Electronic Communications in International
Contracts (2005) (CUECIC)
Pourquoi une telle convention?
2) Enlever incertitude
2) xigences Formelles 1.
crit
Signature
Original
3) Formation du eContract 2.
xigences Formelles
1.
crit
Signature
Original
Tabet c. Equityfeed
Corporation, 2017 QCCS 3303
Signature
Actum 2 critres de 2827CCQ
Instrumentum
Transfert
Formation du eContrat
2.
Approche minimaliste
INFORMATION
A
RECEPTION
EMISSION
B
DECLARATION
Offre
2.A
Temps et lieu de lexpdition et de
la rception des communications
lectroniques 2.A
10 (1). Le moment de lexpdition dune
communication lectronique est le moment o
cette communication quitte un systme
dinformation dpendant de lexpditeur
Mais
Quest-ce quun contrat
automatis? 2.B
Amazon Moi
Contrat automatis simple
2.B
(UN Convention art. 14)
+ 2 conditions
- diligence de lusager
- Pas davantages de lusager
Conclusions
2.B
1) communication 1
2) acceptation 2
1399 CCQ
1
Contrat = Information
Mais..
1
Information = oxygne
Feldman v. Google (April 2007)
AdWords Agreement gave reasonable notice of its terms. In order to
activate an AdWords account, the user had to visit a webpage which
displayed the Agreement in a scrollable text box. () the text of the
AdWords Agreement was immediately visible to the user, as was a
prominent admonition in boldface to read the terms and conditions
carefully, and with instruction to indicate assent if the user agreed to the
terms. That the user would have to scroll through the text box of the
Agreement to read it in its 14 entirety does not defeat notice because there
was sufficient notice of the Agreement itself and clicking Yes constituted
assent to all of the terms. The preamble, which was immediately visible,
also made clear that assent to the terms was binding. The Agreement was
presented in readable 12-point font. It was only seven paragraphs long
not so long so as to render scrolling down to view all of the terms
inconvenient or impossible. A printer-friendly, full-screen version was
made readily available. The user had ample time to review the
document.
4 - Hyperliens
1
Copyright
Privacy
Cookies
Terms and Conditions of Sale
Terms of Use
Limited Warranty
Service Contracts
Hardware Technical Support
Policy
Etc.
7 - Terminologies juridiques
1
THE SERVICES PROVIDED BY US ARE PROVIDED "AS IS." WE MAKE NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY
WARRANTY REGARDING THE RELIABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE OF ITS SERVICES. USER UNDERSTANDS AND
ACKNOWLEDGES THAT WE EXERCISE NO CONTROL OVER THE NATURE, CONTENT OR RELIABILITY OF THE INFORMATION AND/OR
DATA PASSING THROUGH OUR NETWORK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, ITS DEALERS, AGENTS OR
EMPLOYEES SHALL CREATE A WARRANTY AND USER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. WE MAKES NO
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, REGARDING THE QUALITY, ACCURACY OR VALIDITY OF THE INFORMATION
AND/OR DATA RESIDING ON OR PASSING THROUGH ANY NETWORK. USE OF ANY INFORMATION AND/OR DATA OBTAINED FROM OR
THROUGH SERVICES PROVIDED BY US WILL BE AT USERS OWN RISK. USER ACKNOWLEDGES THAT WE ARE NOT LIABLE FOR ANY
ERRORS OR INTERRUPTION IN THE INSTALLATION PROCESS OR IN PROVIDING THE SERVICES, WHETHER WITHIN OR OUTSIDE THE
CONTROL OF US. UNDER NO CIRCUMSTANCES SHALL THE USER HOLD US OR ANY OF OUR AGENTS, CONTRACTORS OR
REPRESENTATIVES RESPONSIBLE FOR ANY FORM OF DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT,
CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSSES) SUFFERED FROM, BUT NOT LIMITED TO ERRORS, DELAYS, LOSS OF
INFORMATION, DELAYS IN THE INSTALLATION OR PROVISIONING PROCESS, OR INTERRUPTIONS IN THE SERVICES CAUSED BY THE
USER, US OR A THIRD PARTYS NEGLIGENCE, FAULT, MISCONDUCT OR FAILURE TO PERFORM. USER UNDERSTANDS THAT
TELECOMMUNICATION AND/OR NETWORK ACCESS SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED OR
UNSCHEDULED MAINTENANCE AND FOR OTHER REASONS WITHIN AND OUTSIDE OF THE DIRECT CONTROL OF US. UNDER NO
CIRCUMSTANCES DO ANY SUCH ERRORS, DELAYS, INTERRUPTIONS IN SERVICES OR LOSS OF INFORMATION NULLIFY OR MODIFY
THESE TERMS AND CONDITIONS. WE RESERVE THE RIGHT TO REFUSE OR TERMINATE SERVICES TO A USER AT ANY TIME WITHOUT
CAUSE. THE INTERNET CONTAINS UNEDITED MATERIALS, WHICH MAY BE SEXUALLY EXPLICIT, OR MAY BE OFFENSIVE TO YOU OR
OTHERS ACCESSING THE SERVICES. WE HAVE NO CONTROL OVER SUCH MATERIALS AND ACCEPT NO RESPONSIBILITY FOR SUCH
MATERIALS.
7 Terminologies 1
8 Titres non juridiques
1
consumer contract Privacy contract
terms of Services privacy
conditions of Use confidentiality
conditions of Sale FAQ
notice security
legal legal
waiver waiver
licence licence
etc. notice
etc.
9 Clauses abusives
1
10 Clauses stupides
DELL (INCLUDING DELLS PARENTS, AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES OR AGENTS) DOES NOT ACCEPT
LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN,
INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING
AVAILABLE FOR USE, LOST OR CORRUPTED DATA OR
SOFTWARE, PRODUCTS SOLD THROUGH DELLS SOFTWARE
AND PERIPHERALS DIVISION, OR THE PROVISION OF
SERVICES OR SUPPORT. DELL WILL NOT HAVE ANY LIABILITY
FOR ANY DAMAGES ARISING FROM THE USE OF THE
PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT
LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES,
AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR
TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT OR
WEAPONS SYSTEMS. DELL WILL NOT BE LIABLE FOR LOST
PROFITS, LOSS OF BUSINESS, OR OTHER INCIDENTAL,
INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS
EXPRESSLY PROVIDED HEREIN.
10 Clauses stupides
Court
Langage accessible
Humanit
Lent
Visuel
Exemple intressant :
1
www.creativecommons.ca/
1399 CCQ
2
A. Shrink wrap
B. Click wrap
C. Browse wrap
1 - shrink wrap
2.A
2 questions principales
Clause arbitrale et consommation
Validit du eContract