Online purchases: conclusion of a contract

Due to digitalization, goods are being purchased more easily and conveniently from an online store. This form of purchase also entails the conclusion of a contract. This does however include a few special features that require consideration. A lawyer specialized in contract law can give you more information about the special features in the conclusion of a contract.

FORMATION OF A CONTRACT

A conclusion of a contract requires a mutual declarations of intent- the proposal and the acceptance- on all the objectively essential points of the contract (essentialia negotii) (Art. 1 CO). Application and acceptance may be express or implied. The same principle also applies to online trading; two electronically transmitted declarations of intent on the behalf of the buyer and seller on all essential points of the contract are necessary. If the two parties agree, a contract is concluded. If you have further questions regarding the conclusion of a contract, please contact our lawyers for contract law.

Compared to neighboring countries, there is no special law for online trading in Switzerland. Therefore, the normal provisions of the Swiss Code of Obligations are applicable.

request AND acceptance

The following discussion described how the request and acceptance of a contract appears when concluding a purchase in online commerce. The request is the submission of one’s will to conclude the contract. When buying produce online, the request is simply made by pressing the ‘order’ button. Thus, the buyer is making the request, not the seller. Presenting goods in an online store is merely an invitation to the customer to make an offer (so-called invitatio ad offerendum) and it is therefore not binding. The goods are offered to an unlimited number of potential buyers. Furthermore, the seller must accept the buyer’s offer before the contract is concluded. The seller can also make an offer- for example, if something can be downloaded directly after the purchase- but this remains the exception.

In the context of online commerce, a contract is considered concluded in the offeree’s absence (Art. 5 CO). Thus, when no time limit is set, the offer remains binding on the offeror until he might expect a reply sent duly and promptly to have reach him (Art. 5 para. 1 CO). Pursuant to the Code of Obligations, he may presume that his offer has been promptly received (Art. 5 para. 2 CO).

The seller accepts or rejects the buyer’s offer according to the available stock. The acceptance can be expressed explicitly or implicitly. An explicit acceptance is given when the seller sends an order confirmation to the buyer. If the goods are simply shipped or the service is provided, there is tacit acceptance of the contract.

To determine whether the display of goods is already a contract request or only an invitatio ad offerendum, one of our lawyers for contract law can help you. Information on the various steps of an online commerce, including when a request and an acceptance exist, can also be found in the General Terms and Conditions (GTC) of the online store.