Let's look at this question of contract acceptance through a (more realistic) variation on the contract hypothetical we looked at in the last message. Our newsletter provider, XYZ.com, puts the following message at its web site:
"You may obtain a one-year subscription to our newsletter XYZNews for the special low price of $5.00 for each monthly issue, simply by filling in your name and e-mail address on the form below and then clicking the 'SUBSCRIBE' button. By subscribing, you agree to the terms and conditions set forth in our Subscriber's Contract; to read the Subscriber's Contract, click on 'CONTRACT TERMS' below."
Now, suppose you fill in your name and e-mail address and click SUBSCRIBE, but, like most folks, you don't actually take the time to look at, let alone read, the Subscriber's Contract.
Do you have a contract with XYZ? Absolutely -- there was an offer [to deliver the weekly newsletter to you], a specification of the behavior that the offeror deems to constitute acceptance of the offer [clicking on the SUBSCRIBE button], and consideration for the contract [the offeror will deliver the newsletter to you and you will pay $5.00 per issue]. This "clickwrap contract"/*/ is an example of what the law calls a "contract of adhesion" -- a contract you didn't really bargain over in any way, but which was presented as more of a take-it-or-leave-it offer.
Generally speaking, adhesion contracts *are* legally enforceable. Indeed, we enter into contracts like this all the time -- e.g., when we buy something from the supermarket (without any chance to negotiate about the price of the item), or order some item from a restaurant, or park our car in a commercial lot, or undertake any of the other innumerable transactions where we agree, in effect, to pay the asking price for some good or service by virtue of some act of availing ourselves of the good or service.
But the hard(er) question is: What are the terms of the contract? In particular, have you accepted the terms of the Subscriber's Contract even if you haven't read it? If you do something that is, unbeknownst to you, prohibited by the Subscriber's Contract, can XYZ sue you for breach of contract? That, as we'll see in our next message, can be a bit trickier.
/*/ You didn't really think three law professors would get through this WHOLE series without a single footnote, did you? The use of the term "clickwrap contract" for this arrangement is a reference to the "shrinkwrap licenses" you may be familiar with in the software world. For many years (and to some extent still today), mass-marketed software comes with the terms of the contract -- the license agreement -- packaged under clear wrapping, with the notice that by opening the package you are agreeing to the terms of that license. Clickwrap is the same idea -- by clicking here, you are similarly agreeing to the contract's terms.
authors:
| Larry Lessig | David Post | Eugene Volokh |
This work is licensed under a
Creative Commons Attribution 3.0 United States License.