Electronic Communications Convention - Impact on Quebec 2008


ANNEX 1

COMPARATIVE TABLE
CONVENTION QUEBEC
REMOVE OBSTACLE ANNEX, where as clause 4 : Convinced that the adoption of uniform rules to remove obstacles to the use of electronic communications in international contracts, including obstacles that might result from the operation of existing international trade law instruments, would enhance legal certainty and commercial predictability for international contracts and help States gain access to modern trade routes, 1. The object of this Act is to ensure

1) the legal security of documentary communications between persons, associations, partnerships and the State, regardless of the medium used;

 

FUNCTIONAL EQUIVALENCE ANNEX, where as clause 5 : Being of the opinion that uniform rules should respect the freedom of parties to choose appropriate media and technologies, taking account of the principles of technological neutrality and functional equivalence, to the extent that the means chosen by the parties comply with the purpose of the relevant rules of law,

 

1 (3) The object of this Act is to ensure … ) the functional equivalence and legal value of documents, regardless of the medium used, and the interchangeability of media and technologies;
FREEDOM ANNEX, where as clause 5 : supra.

8 (2): Nothing in this Convention requires a party to use or accept electronic communications, but a party’s agreement to do so may be inferred from the party’s conduct.

 

2. Except where a document is required by law to be in a specific medium or technology, any medium or technology may be used, provided the medium or technology chosen is in compliance with legal rules, in particular those contained in the Civil Code.

29. A person may not be required to acquire a specific medium or technology to transmit or receive a document, unless such requirement is expressly provided by law or by an agreement.

Similarly, no person may be required to receive a document in a medium other than paper, or by means of technology that is not at the person's disposal.

A product or service, or information on a product or service, that is available in more than one medium, may be obtained in any such medium, at the option of the recipient of the product or service.

REGOGNITION 8 (1) : A communication or a contract shall not be denied validity or enforceability on the sole ground that it is in the form of an electronic communication. 5 para. 1. The legal value of a document, particularly its capacity to produce legal effects and its admissibility as evidence, is neither increased nor diminished solely because of the medium or technology chosen.

 

DEFINITIONS Data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange, electronic mail, telegram, telex or telecopy; 3. Information inscribed on a medium constitutes a document. The information is delimited and structured, according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images. The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or another system of symbols.

For the purposes of this Act, a database whose structuring elements allow the creation of documents by delimiting and structuring the information contained in the database is considered to be a document.

A record may comprise one or more documents.

In this Act, a technology-based document is a document in any medium based on any information technology referred to in paragraph 2 of section 1.

 

4. A technology-based document, even when the information it contains is fragmented and dispersed in one or more media at one or more locations, is considered to form a whole if its logical structuring elements allow the fragments to be connected, directly or by reference, and if such elements ensure both the integrity of each fragment and the integrity of the document reconstituted as it existed prior to its fragmentation and dispersal.

SCOPE 2 (1) This Convention does not apply to electronic communications relating to any of the following:

(a) Contracts concluded for personal, family or household purposes;

(b) (i) Transactions on a regulated exchange; (ii) foreign exchange transactions; (iii) inter-bank payment systems, inter-bank payment agreements or clearance and settlement systems relating to securities or other financial assets or instruments; (iv) the transfer of security rights in sale, loan or holding of or agreement to repurchase securities or other financial assets or instruments held with an intermediary.

2. This Convention does not apply to bills of exchange, promissory notes, consignment notes, bills of lading, warehouse receipts or any transferable document or instrument that entitles the bearer or beneficiary to claim the delivery of goods or the payment of a sum of money.

WRITING 9 (2) Where the law requires that a communication or a contract should be in writing, or provides consequences for the absence of a writing, that requirement is met by an electronic communication if the information contained therein is accessible so as to be usable for subsequent reference. 2838 CCQ. In addition to meeting all other legal requirements, the integrity of a copy of a statute, an authentic writing, a semi-authentic writing or a private writing drawn up in a medium based on information technology must be ensured for it to be used to adduce proof in the same way as a writing of the same kind drawn up as a paper document.
SIGNATURE 9 (3) Where the law requires that a communication or a contract should be signed by a party, or provides consequences for the absence of a signature, that requirement is met in relation to an electronic communication if:

(a) A method is used to identify the party and to indicate that party’s intention in respect of the information contained in the electronic communication; and

(b) The method used is either:

(i) As reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or

(ii) Proven in fact to have fulfilled the functions described in subparagraph (a) above, by itself or together with further evidence.

2827 CCQ.  A signature is the affixing by a person, to a writing, of his name or the distinctive mark which he regularly uses to signify his intention [sic].
ORIGINAL 9 (4). Where the law requires that a communication or a contract should be made available or retained in its original form, or provides consequences for the absence of an original, that requirement is met in relation to an electronic communication if:

(a) There exists a reliable assurance as to the integrity of the information it contains from the time when it was first generated in its final form, as an electronic communication or otherwise; and

(b) Where it is required that the information it contains be made available, that information is capable of being displayed to the person to whom it is to be made available.

9 (5) For the purposes of paragraph 4 (a):

(a) The criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change that arises in the normal course of communication, storage and display; and

(b) The standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of all the relevant circumstances.

12 LFIT Act.  A technology-based document may fulfil the functions of an original. To that end, the integrity of the document must be ensured and, where the desired function is to establish

1) that the document is the source document from which copies are made, the components of the source document must be retained so that they may subsequently be used as a reference;

2) that the document is unique, its components or its medium must be structured by a process that makes it possible to verify that the document is unique, in particular through the inclusion of an exclusive or distinctive component or the exclusion of any form of reproduction ;

3) that the document is the first form of a document linked to a person, its components or its medium must be structured by a process that makes it possible to verify that the document is unique, to identify the person with whom the document is linked and to maintain the link throughout the life cycle of the document.

 

TIME AND PLACE 10 (1) The time of dispatch of an electronic communication is the time when it leaves an information system under the control of the originator or of the party who sent it on behalf of the originator or, if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator, the time when the electronic communication is received.

2. The time of receipt of an electronic communication is the time when it becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. The time of receipt of an electronic communication at another electronic address of the addressee is the time when it becomes capable of being retrieved by the addressee at that address and the addressee becomes aware that the electronic communication has been sent to that address. An electronic communication is presumed to be capable of being retrieved by the addressee when it reaches the addressee’s electronic address.

3. An electronic communication is deemed to be dispatched at the place where the originator has its place of business and is deemed to be received at the place where the addressee has its place of business, as determined in accordance with article 6.

4. Paragraph 2 of this article applies notwithstanding that the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is deemed to be received under paragraph 3 of this article.

31. A technology-based document is presumed transmitted, sent or forwarded where the action required to send it to the active address of the recipient has been accomplished by or on the instructions of the sender, and the transmission cannot be stopped or, although it can be stopped, is not stopped by or on the instructions of the sender.

A technology-based document is presumed received or delivered where it becomes accessible at the address indicated by the recipient as the address where the recipient accepts the receipt of documents from the sender, or at the address that the recipient publicly represents as the address where the recipient accepts the receipt of documents, provided the address is active at the time of sending. The document received is presumed intelligible, unless notice to the contrary is sent to the sender as soon as the document is accessed.

The time of sending or of receipt of a document may be established by producing a transmission slip or an acknowledgement of receipt or the information kept with the document providing it guarantees the date, hour, minute and second of sending or receipt and indicates the source and destination of the document, or by any other agreed method that provides the same guarantees.

AUTOMATED CONTRACT 12. A contract formed by the interaction of an automated message system and a natural person, or by the interaction of automated message systems, shall not be denied validity or enforceability on the sole ground that no natural person reviewed or intervened in each of the individual actions carried out by the automated message systems or the resulting contract.

14 (1). Where a natural person makes an input error in an electronic communication exchanged with the automated message system of another party and the automated message system does not provide the person with an opportunity to correct the error, that person, or the party on whose behalf that person was acting, has the right to withdraw the portion of the electronic communication in which the input error was made if:

(a) The person, or the party on whose behalf that person was acting, notifies the other party of the error as soon as possible after having learned of the error and indicates that he or she made an error in the electronic communication; and

(b) The person, or the party on whose behalf that person was acting, has not used or received any material benefit or value from the goods or services, if any, received from the other party.

2. Nothing in this article affects the application of any rule of law that may govern the consequences of any error other than as provided for in paragraph 1.

35. A party that offers a product or service by means of a pre-programmed document must, on pain of non-enforceability of the communication or cancellation of the transaction, see to it that the document provides instructions that allow users to promptly advise the party of any errors or contains means that allow users to avoid or correct errors. Similarly, users must be provided instructions or means to avoid receiving unwanted products or services because of an ordering error, or instructions for the return or destruction of unwanted products.

* Professor, lawyer, Faculty of Law of the Université de Montréal. Holder of the Chaire de l’Université de Montréal en droit de la sécurité et des affaires électroniques. Internet site: www.gautrais.com. E‑mail: This email address is being protected from spambots. You need JavaScript enabled to view it. .

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018