Принципы договорного права в современных условиях цифровизации общества (на примере судебной практики США)

Abstract

The article is devoted to the role of the principles of contract law in the cases arises from economic disputes in connection with the use of current digital technologies by the parties of the contract. Based on the analysis of different US court decisions, the author makes several scientific proposals. The most fundamental of them is that the digitalisation of society and the emergence of new relationships does not prevent the application of the principles of contract law. At the same time, the principles might be filled with special content and understanding. In such circumstances, the interpretation of the principles of contract law is essentially vital. There is a good example of the successful attempt of this type of interpretation. Having examined the interface and design of the corresponding online platform, the court of the USA determined the fact of consent to the terms of the user agreement according to the principle contractual freedom. It is a very useful approach for the Russian practice as well. Based on the principles of contract law, the US courts formulate the substantive part of the decision. Furthermore, they do creatively approach the establishment of a model for regulating emerging relations in the digital economy. The creatively approach of courts should not be useful in Russia according to the traditions of the continental system of law. However, it should be used by the legislative power. In order to establish an affective regulatory model, it is necessary to take into account not only economic feasibility and technical features. First of all, we have to rely on the principles of law. Unfortunately, it is not always obvious in Russia.