Title

Are Browse-Wrap Agreements All They Are Wrapped Up to Be?

Abstract

Electronic agreements continue to fortify their presence in the digital commercial marketplace. Whether used to sell goods or services, or simply to define relationships, standardized electronic agreements have appeared in abundance in business-to-business or business-to-consumer transactions. Standardized electronic agreements, like their physical counterparts, offer the ability to address multiple concerns in a simple, efficient fashion. Although electronic contracts and electronic signatures have been accepted and promoted by federal and state governments, many fundamental aspects of contract law have been left for the courts to wrestle with when disputes arise.

Today, there are essentially two types of standardized electronic agreements—the click-through agreement and the browse-wrap agreement. A click-through agreement is an agreement that requires an offeree to click on an acceptance icon, which evidences a manifestation of assent to be bound to the terms of a contract. On the other hand, a browse-wrap agreement is one that is typically presented at the bottom of the website and where acceptance is based on “use” of the site. Litigation surrounding click-through agreements surfaced first, but browse-wrap litigation soon followed. Although neither agreement is particularly new (each has appeared well in advance of the ensuing litigation), few state and federal courts have addressed the enforceability of browse-wrap agreements and the terms therein. The dearth of settled law surrounding browse-wrap agreements creates uncertainty. This article discusses the development of browse-wrap contract law as it relates to formation, enforcement of specific terms and areas that are still to be addressed.

Disciplines

Computer Law | Intellectual Property Law | Internet Law

Date of this Version

November 2006