All Wrapped Up and Nowhere to Gogo: Wrap Contracts Meet the Wrapture
28 Pages Posted: 15 Feb 2016 Last revised: 23 Feb 2016
Date Written: February 12, 2016
The legal community’s unenthusiastic acceptance of electronic boilerplate “wrap” contracts is pervasive. Boilerplate and wrap contracts are generally justified as cost-reducing and a fair result of parties’ freedom to contract. But only a small share of internet users are aware that clicking “I Agree” creates contractual obligations, and the overwhelming majority of those users fail to read or appreciate the obligations contained in wrap contracts. Certain forms of “wrap” contracts are widely recognized in the legal community, like browsewrap and clickwrap, and others are exotic, like hybridwrap, tapwrap, and installwrap. The problem, though, is these defined forms should bear no legal consequence because they all boil down to the same three considerations: Does the presentation of the terms provide reasonable notice of their existence? Does the user have a fair opportunity to read the terms? What terms did the user accept by an express manifestation of assent?
This article surveys the inappropriate proliferation of “wrap” contract characterizations. The proliferation muddles the predictable course of contract formation and allows divergent application of precedent. The article covers seminal cases like ProCD, Inc. v. Zeidenberg and Ariz. Retail Sys. v. Software Link, Inc., and recent decisions like Savetsky v. Pre-Paid Legal Servs. and Berkson v. Gogo LLC.
The article lays out a simple alternative to avoid the ‘wrap’ nomenclature – retaining the “shrinkwrap” characterization and calling all other electronic contracts of adhesion “clickthrough agreements.” Clickthrough agreements are further characterized by three necessary elements: (1) the agreement’s presentation must provide reasonable notice of the terms, (2) the agreement includes only those terms which the user had a fair opportunity to read, and (3) the user’s express manifestation of assent must evidence acceptance of the terms qualifying under (1) and (2).
Keywords: clickwrap, shrinkwrap, installwrap, sign-in-wrap, scrollwrap, tapwrap, hybridwrap, webwrap, quickwrap, ripwrap, clickthrough, contracts, contract formation, acceptance, offer, offer and acceptance, unconscionable, substantive unconscionability, procedural unconscionability
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