Online and As Is

36 Pages Posted: 24 Feb 2017  

Colin P. Marks

St. Mary's University School of Law

Date Written: February 23, 2017

Abstract

Online retail is a multi-billion-dollar industry in the United States. Consumers enjoy the ease with which they can browse, click, and order goods from the comfort of their own homes. Though it may come as no surprise to most lawyers, retailers are taking advantage of online transactions by attaching additional terms and conditions that one would not normally find in-store. Some of these conditions are logical limitations on the use of the retailers’ websites, but others go much further, limiting consumers’ rights in a way that would surprise many shoppers. In particular, many online retailers are using these terms to limit implied warranties, selling the goods “as is,” and limiting remedies, as well as adding a host of other limitations. This article does not discuss the effects of online terms and conditions, but rather starts with exploring a very basic question: How prevalent are certain terms and conditions? While these terms and conditions may seem to be ever-present in online transactions, there have been few attempts thus far to empirically record the frequency of their use in retail transactions involving goods. This article remedies the situation by exploring the mode by which consumers assent, the prevalence of warranty and liability limitation clauses, and the prevalence of other common clauses used by the largest retailers in the United States.

Keywords: online, consumer law, consumer, retailer, Amazon, Apple, Walmart, Specht, Concepcion, terms, conditions, assent, boilerplate, as is, limited liability, arbitration, choice of law, forum selection, jury waiver, contract, goods, article 2, UCC, 2-316, 2-719, browse wrap, click wrap

JEL Classification: D12, D18, D22, K12, L67, L68, K00, K10, K20, K30, K40, K41

Suggested Citation

Marks, Colin P., Online and As Is (February 23, 2017). Available at SSRN: https://ssrn.com/abstract=2922327 or http://dx.doi.org/10.2139/ssrn.2922327

Colin P. Marks (Contact Author)

St. Mary's University School of Law ( email )

One Camino Santa Maria
San Antonio, TX 78228
United States

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