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30 Oct 2000, Belgium

Hello Dr. E-commerce,

When reading the disclaimer info on web sites, one sometimes notices phrases like 'the company is not sollicitating [sic] US-citizens to become customers' or 'the company cannot be held responsible for the information provided'. Also, I noticed the expression 'You hereby waive any claim or right to have this Agreement translated into any language other than English. Furthermore, you hereby waive any claim or right to have this Agreement interpreted under any local law, ordinance, directive, or act, other than under the
laws of ...'.

Questions:

1) are these disclaimers obligatory, just useful, or completely inappropriate?
2) what if no disclaimer is made? Can someone raise a claim because a) the information is wrong, or b) differently interpreted in their local language?

Kind regards,

Koert

Dear Koert:

In general, such disclaimers are useful. Sometimes, very useful. Sometimes useless.

The statement, "the company is not sollicitating [sic] US-citizens to become customers", contains the unusual word "sollicitating", which does not exist in my Oxford English dictionary. However, a web search reveals that it can be found on a number of web sites. I assume it is an Americanism that means "soliciting". Such a disclaimer would be used when a company is selling a product that is restricted in one way or another in the USA. It may be that the company is a Franchise of a US company and so is contractually restricted from selling in the US. It may be that the company is selling something, such as financial products or drugs, which can not be sold, or can only be sold under restricted circumstances, in the US.

An e-commerce web site can be considered an invitation to a customer to make a contract with the vendor. Once the customer purchases the product and the vendor confirms it (such as via an e-mailed receipt), the contract is essentially 'signed' by both parties. Hence, it is a good idea for e-commerce sites to put their general terms on the web. These would include all sorts of issues such as place of establishment, jurisdiction, return policies, etc. Typically, if a contract is between two or more parties living in different countries, the general terms will indicate which country's laws will apply and that the only legal contract is the original language version. This is basically because no two languages are exactly alike and a translation may slightly alter the meaning of a contract. Normally, of course, translations are acceptable to allow contracting parties to understand the general terms, but these translations are for informational purposes only.

Regarding a lack of disclaimers, someone can only make a claim against an e-business's incorrect information if they can demonstrate some kind of damage occurred as a result of that misinformation. For example, I have a disclaimer on my web site informing people that we cannot take responsibility for any action visitors may take as a result of reading information on this web site. This is in case, for example, someone misinterprets something I've written, acts upon it and winds before a firing squad or in jail. An extremely unlikely scenario, mind you, however, I need to cover myself and my team against being sued by such a person. However, if someone simply discovers incorrect information my web site, they would have no grounds to take legal action irrespective of whether or not there was a disclaimer on the site.

Good luck,

Dr. Ecommerce