Occasionally, my children attempt to play a new game of tag that they have made up and then realize that they have not made up all the rules. At this point, they stop and create the missing rules. We adults are at the same place in the game. We have made up a new game: “contracting in cyberspace,” but we are not at all clear about the rules. Every day, thousands of people worldwide make connections via the Internet and enter into legally binding relationships in which the rules of the game are not clear. These legal arrangements raise complex and varied legal issues unprecedented in the law. To name a few, these arrangements raise issues of statute of frauds, authenticity of signatures, conflicts of law, licensing issues and the nature of offers and acceptances. This Article examines but one of the many issues raised when parties contract in cyberspace: the time and place of acceptance when it is communicated through the Internet. In examining this issue, the Author considers the theoretical and practical underpinnings of existing law as it applies to electronic transactions. While the existing black letter law is that an offer to contract is effective when received by the offeree, the general common law rule in the United States is that acceptance is effective when sent. This rule of law, oft-called the “mailbox rule,” originated in England at a time of widespread use of the post. Today,as more efficient methods of communication are routinely used, the rule's application has declined. This Article argues that the rule continues to have a theoretical and practical basis in the case of contracts made electronically over the Internet. Part I of the Article reviews the various manners in which contracts can be formed electronically and discusses the original justification for the mailbox rule. Part II discusses the existing legal landscape as it relates to the mailbox rule. Part II, also compares and analyzes provisions of the First and Second Restatements of Contracts, Article 2 of the Uniform Commercial Code (hereinafter “UCC”), the Uniform Electronic Transactions Act (hereinafter “UETA”), the Uniform Computer Information Transactions Act (hereinafter “UCITA”), and the Electronic Signature in Global and National Commerce Act (hereinafter “E-SIGN”). Additionally, the limited relevant case law is considered and analogy is made to case law involving mail, facsimile, tele-phone, telegraph and telex. Part III urges that the mailbox rule continues to be a theoretically sound and efficient rule for contracts formed electronically
