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THE LEGAL SITUATION OF E-COMMERCE IN MEXICO

E-Commerce summarizes itself to goods purchase or services provision. Such transactions are agreements which have a legal, specific and own regulation, same which generate rights and obligations between the contracting parties.

The main aspect to determine is if e-commerce can be treated in Mexico under the same rules and principles as the purchases carried out through other different means or if a specific regulation is necessary.

The current applicable rules for purchase agreements, as well as their preparation actions (offer and acceptance) are preliminarily, directly applicable to the purchases carried out through electronic means. The use of this technology does not alter in any manner whatsoever, the nature of the agreement or the general content of the obligations, rights and liability as generated for the parties.

Purchases carried out within Mexico are governed by the Commerce Code and the Civil Code and also by the Federal Consumer Protection Law when carried out to final goods users. Pursuant to these laws, electronic messages may be deemed as offers to determined individuals or offers to the general public.

The Civil Code does not provide for the offers made to the public through a specific manner or means; it just states that the fact of offering to the public goods at a certain price, binds the owner to sustain the offer. That is why if in a website or a virtual store a goods offer is made, and it adequately identifies and describes such goods, at a certain price, under legal terms an offer to the public exists and it is mandatory for the individual who made the offer to sustain it.

Mexico currently has a legislation that provides enough safety in order for the e-commerce practice to be carried out, since from the substantive standpoint, Mexican legislation that governs purchase transaction does not provide any obstacle for emails to have legal effects as acceptance and offer, nor for the electronic agreement to be perfected through those means. An option to supersede any procedural problem will be to occur before an arbitration procedure.

The safety of the operators of electronic commerce mainly depends on the fact that their websites or virtual stores have the necessary and adequate information regarding the type of sales they aim at carrying out. For this it is necessary to determine if the goods offer will be carried out at a national level or if it extends to an international environment, if they are offers made to retailers or to consumers and if they are offers to the public or to determined individuals.

A higher legal safety can be achieved in offers made to determined individuals, supported on written agreement in which sales conditions are specified, as well as governing rules, and remittance to an arbitration court in the case of controversies.

Public offers made to retailers may also have enough safety, if within the offers an indication is included as to the sales conditions, the rules governing the agreement, the remittance to an arbitration court and are structured in a manner which may not be modified by a partial acceptance. Safety may also be enhanced by asking a receipt of each electronic communication.

The offers made to the national general consumer public may be safe if all the requirements provided by the Federal Consumer Protection Law with regard to offer publicity  and adhesion agreements are met, however within the dispute resolution, the first authority to be involved shall be the Federal Consumer Protection Bureau and then the parties may occur to an arbitration procedure.

The offers made to the consumer public at an international level are less safe due to the fact that it is not possible to determine the applicable laws beforehand or the rights which the consumer may claim.

The approval of an electronic commerce law based on the international frame legislation will not modify substantially this situation, but it would ease the acknowledgement or emails as means of agreement formation and evidence of the same. Especially, it will refrain them from being filed as means of evidence before courts.

 Sincerely,

ACM Legal