Details

Autor(en) / Beteiligte

• Davis, Nathan J.

Titel

Presumed Assent: The Judicial Acceptance of Clickwrap

Ist Teil von

• Berkeley technology law journal, 2007-01, Vol.22 (1), p.577-598

Ort / Verlag

Berkeley: Regents of the University of California

Erscheinungsjahr

2007

Quelle

Business Source Ultimate

Beschreibungen/Notizen

• Electronic standard form contracting has become increasingly common as computers and the internet have taken on an important role in commerce and in the distribution of products and services. Despite the prevalence of these types of agreements, they have been the subject of controversy because of the conventional wisdom that people typically do not take the time to read standard form contracts. Rather than attempting to enter the debate over how theoretically unreasonable these contracts can be, this paper accepts that clickwrap agreements can provide significant benefits and suggests that a review of the cases in which clickwrap terms have been litigated demonstrates that contractors are not vigorously exploiting their ability to extract assent in a way that requires a drastic judicial response. This paper submits that although the current analytical framework for adjudicating clickwrap agreements does not include a particularly rigorous assent analysis, it has been adequate for addressing the types of agreements that have been litigated thus far. The paper focuses exclusively on clickwrap, rather than shrinkwrap or browsewrap agreements.