Situational Duress and the Aberrance of Electronic Contracts

Abstract

This article explains how the aberrant nature of electronic contracts has unique implications, which contract law should recognize. Companies, taking advantage of these unique implications, may use electronic contracts in an unfair and coercive manner, which is why this article proposes expanding the definition of duress to include “situational duress.” Situational duress would not encompass all electronic contracting scenarios, but would be limited to situations where (1) a drafting company uses an electronic contract to block consumer access to a product or service; (2) the consumer has a “vested interest” in that product or service; and (3) the consumer accepts the terms because she was blocked from the product or service after attempting to reject or decline them. Thus, situational duress would be limited to those situations where consumers are uniquely vulnerable because of the nature of their interest in the product or service. In these situations, the consumer’s action should not be effective as a manifestation of assent and the contract should be void, not voidable.

Keywords: electronic contracts, wrap contracts, clickwrap, browsewrap, ProCD, duress, situational duress, aberrant contracts