Browse-Wrap Agreements: Validity of Implied Assent in Electronic Form Agreements

Abstract

This Article examines the rules of law governing implied assent, arguments for and against valid implied assent in the context of browse-wrap agreements, principles of contract law addressing implied assent in the "paper world," and the application of these principles to the electronic contract setting. Based on the precedents discussed in this Article, as well as policy arguments, the authors posit that a user validly and reliably assents to the terms of a browse-wrap agreement if the following four elements are satisfied:

(i) The user is provided with adequate notice of the existence of the proposed terms. (ii) The user has a meaningful opportunity to review the terms. (iii) The user is provided with adequate notice that taking a specified action manifests assent to the terms. (iv) The user takes the action specified in the latter notice.

This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Keywords: implied assent, browse-wrap agreements, contracts, electronic forms