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In English contract law, it is of utmost importance to recognise offer and acceptance, in order to build confidence and certainty, and consequently its legal effects. The Directive does not include any mention of offer and acceptance, including instead substantive rules on the placing

122_{Common Position (EC) No 22/2000 of 28 February 2000 adopted by the Council, acting in accordance with the} procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) OJ C 128, 8.5.2000, p. 32–50

123_{Rodolfo Sacco, 'Interaction between the Pecl and Italian Law' in Luisa Antoniolli and Anna Veneziano (eds),}

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of the order, with Article 11 requiring the service provider to acknowledge receipt of the recipient's order without undue delay and by electronic means.124

It is important to understand the meaning of “order” in this context and whether it would mean an offer or not, as the interpretation and implementation of this point has been left to Member States when it is enacted in their national laws; therefore, it is useful to consider the UK’s implementation of this in its Electronic Commerce (EC Directives) Regulations 2002, which has imported the majority of the terminology wholesale from the Articles that form the Directive. Regulation 12 defines the term “order” in two parts: firstly, with relation to Article 11(2) and 10(1)(C), in which “order” refers to the contractual offer; and secondly, in other contexts the Regulation states that the order “may be but need not be the contractual offer”.

However, it has been argued that the imprecise use of language in the term “order” has led to confusion in the Regulation, meaning that it has clearly been left to the courts and to common law; the Interim Guidance by the Department of Trade and Industry states that the regulations do not deal with contract formation itself but that this remains subject to common law and existing statutory provisions. Thus, this involves applying the doctrine of English contract law, which distinguishes between offer and invitation to treat, and the court applies an objective set of rules to assess the intention of the party to be bound in a binding legal agreement.

In applying this rule to interactive sites, where the contents are displayed, whether as an offer or invitation to treat, and where website users browse the business via an electronic platform, it is possible to distinguish three steps: first, when consumers choose certain goods and look at their description and price and other details; second, when they put the goods in the virtual basket and choose between the option to continue shopping or to proceed to the checkout; third,

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when they input the quantity, payment and shipping procedures and the delivery address, which will determine the jurisdiction and other specific details.

It is important to note that throughout all three steps, the website proprietor usually uses an automated system in order to interact with the buyer’s actions, such as checking the availability of goods or determining the price of the shipping and the confirmation, all of which will be discussed later.

The general approach views website content as an invitation to treat, in the same way as a shop display or advertisement, although it could be argued that it is difficult to apply the default rules and is unwise to claim there is a resemblance between electronic shopping and buying from a local shop. In practice, the major UK service providers such as Amazon.co.uk clearly state in the conditions of the sale:

Your order is an offer to Amazon to buy the product(s) in your order. When you place an order to purchase a product from Amazon, we will send you an e-mail confirming receipt of your order and containing the details of your order (the “Order Confirmation E-mail”). The Order Confirmation E-mail is acknowledgement that we have received your order, and does not confirm acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product to you and send e-mail confirmation to you that we've dispatched the product to you.125

However, it is important not to generalise as this may not be the case for all websites and it is necessary for the court to treat each case individually, conducting an objective assessment, so as to preserve the rights of the consumer before those of the business owner.

125_{Amazon.co.uk, ‘Conditions of Use & Sale (Last updated on September 5,2012)’}

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