Dematerialised Goods and Liability in the Electronic Environment: the truth is, “there is no [spoon] box

This paper considers the rights and potential liabilities that may, or may not, arise in relation to contracts for ‘dematerialised’ or ‘intangible’ items. Such contracts are increasingly entered into and performed via an electronic form of communication making this a potentially significant issue for parties engaging in electronic commerce. The issues raised naturally lead to the examination of the legal arguments associated with that most infamous ‘intangible’; computer software. It is argued that in disputes relating to computer software and in particular when the issue of its classification as ‘goods’, ‘services’ or ‘something else’ have been raised, there has been a tendency to overstate the ‘unique’ nature of computer software and lose focus of the real issue of what rights and liabilities should be attached to contracts relating to these items. When other dematerialised or intangible items are considered, an unacceptable dichotomy in relation to rights and potential liabilities, often overlooked when discussing computer software, is highlighted. It is concluded that as the law stands the method by which an item is delivered may dictate the rights and obligations attached to that contract adversely discriminating against the customer using electronic commerce.