The Duty to Draft Reasonably and Online Contracts

Abstract

Mass consumer online agreements lack many of the features of traditional contracts. Their unique characteristics compound the problems that are generally raised by contracts of adhesion. Online agreements are usually presented to the consumer in a way that obscures their legally binding nature. This chapter argues that courts should recognize the differences between online and offline contracts by considering a contract’s form and manner of presentation in adjudicating contract disputes. The design of a contract shapes, expresses and reveals the parties’ intent. “Clickwrap” and “browsewrap” agreements have the power to affect consumer behaviour, not through their terms (which most consumers do not read), but through their presentation and design. The chapter argues that courts should recognize contracting realities, such as consumer behaviour and contract design, in applying the standard of reasonableness in contract disputes.

Keywords: electronic contracting, contract design, clickwrap, browsewrap, online agreements, consumer contracts