Title

Finding Common Ground in the World of Electronic Contracts: The Consistency of Legal Reasoning in Clickwrap Cases

Abstract

Electronic contractual arrangements have raised complex legal issues unprecedented in the law. Technology s impact on traditional contract law doctrines is readily apparent in the dilemmas generated by recent developments in computer software, hardware, and Internet transactions. In such transactions, sellers have increasingly begun utilizing “clickwrap” agreements, whereby standard terms and conditions are displayed on the computer screen when the user attempts to access the seller’s services. Not surprisingly, the enforceability of clickwrap terms, which are often not known to the user until after payment, has become a subject of much debate in the courts. Because many of the clickwrap cases have been fact-based decisions with seemingly contradictory conclusions, various scholarly and academic writings have pointed out the need for a heightened degree of certainty concerning the enforceability of clickwrap.

The aim of this note is to provide clarity to the clickwrap debate and to argue that the legal reasoning behind the various clickwrap decisions has, in fact, been relatively consistent. More importantly, this note illustrates that clickwrap agreements are a legitimate form of contracting, and that objections to clickwrap are substantially no different from objections to most other forms of contracts.

Disciplines

Computer Law | Contracts | Government Contracts | Intellectual Property Law | Internet Law | Science and Technology Law

Date of this Version

November 2006