From Clay Tablets to AJAX: Replicating Writing and Documents in Internet Transactions

• Main Author: MIK, Eliza
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2012
• Subjects: Internet Law
• Online Access: https://ink.library.smu.edu.sg/sol_research/1069; https://ink.library.smu.edu.sg/context/sol_research/article/3021/viewcontent/MIKFROMCLAYTABLESTOAJAX.pdf
• Institution: Singapore Management University

This article addresses the absence of paper and the challenges of transposing the traditional legal concepts of “writing” and “document” into an environment consisting of interactive and interconnected files. Both “writing” and “documents” are concepts that rely on tangible carriers, such as paper. [FN1] Accordingly, legal principles involving either concept presume not only a certain durability, but also the stability and confinement of the information conveyed. What happens when writing is no longer contained on paper? Can writing exist without documents? Is it correct to speak of a “document” if its contents are transient and its scope is difficult to determine? At the current stage of development, legal analysis is incapable of answering any of these questions. Apart from exposing the inadequacy of popular attempts at replicating writing and documents in Internet transactions, this article provides new points of departure for future legal analysis and regulatory efforts in the area of e-commerce. Despite the intuitive association of the terms “writing” and “document” with formalities, this article *5 has broader implications. Statute of fraud requirements aside, writing and documents serve as tools of conveying contractual intentions. At the most basic level, a contract must be certain and complete to be enforceable; the contents of the statements made by the transacting parties must be identifiable. The fulfillment of formal requirements seems to be of little value if it is unclear what obligations can actually be enforced. The mainstream approaches to the concepts of “writing” and “document” are best tested when confronted with Asynchronous JavaScript and XML (AJAX), a suite of technologies enabling Web pages to partially refresh the displayed content in real time. Admittedly, tying a legal argument to a specific technology may affect its general relevance and condemn it to oblivion once the technology in question declines in popularity. It must, however, be emphasized that AJAX symbolizes an irreversible shift in Web development. Even if the technologies represented by the acronym lose their significance or become obsolete, the World Wide Web will have permanently shifted to more interactive and dynamic interfaces. Accordingly, problems of reconceptualizing traditional legal concepts in light of such developments will persist.