Challenges Arising from the Retailer’s Use of Standard Terms in B2C E-Contracts
Prof. Amin Dawwas
Professor of Private Law
KILAW
Dr. Tariq Alawneh
Assistant Professor of Commercial Law
KILAW
Abstract:
E-contracting is constantly growing. In the majority of retail transactions, i.e. B2C (Business-to-Consumer) the consumer does not have enough opportunity to negotiate the terms of the contract. Instead, the retailer expects the consumer to contract according to its standard terms, normally displayed on website.
Kuwaiti law no. 20/2014 on electronic transactions and law no. 39/2014 on the protection of the consumer do not include an express provision on the incorporation of standard terms used by either party into the e-contract. Furthermore, the general rules of Kuwaiti Civil Code on making the contract, although including a provision (Article 51) on model contracts, do not directly govern the issue of incorporation of standard terms into the contract.
In comparative (general) contract law, standard terms used by the retailer shall only be incorporated into the contract if the consumer knew or at least was given the opportunity to know about standard terms before the contract comes to exist. Thus, how can an online retailer ensure that it gives the consumer sufficient opportunity to know about its standard terms? This paper adopts the analytical methodology to answer this question under Kuwaiti law. It discusses the methods of making e-contracts, the methods of using standard terms by retailers in e-contracting, the requirements of including standard terms into the B2C e-contracts under Kuwaiti law. It concludes with a recommendation to make a new specific provision in this regard.
Keywords: Standard terms; model contracts; adhesion contracts; B2C e-contract; Kuwaiti Law