Digital Contracts (June 1, 2018 - May 31, 2019)

75 THE BUSINESS LAWYER 1683 (Winter 2019-2020)

12 Pages Posted: 9 Mar 2020

See all articles by Nancy S. Kim

Nancy S. Kim

California Western School of Law

Date Written: February 7, 2020

Abstract

This Article provides an update of cases involving non-negotiated digital contracts, also referred to as “wrap contracts,” during the period of approximately June 1, 2018 to May 31, 2019. Cases decided during the survey period continue to reflect confusion regarding the meaning of the standard of notice-and-manifestation of assent. In particular, they reflect a lack of clarity regarding whether notice refers to the terms of service generally or whether the offeree must have notice of, and assent to, specific terms. Recent cases manifest a developing trend that imposes greater responsibility on drafting parties. Courts are examining successive screenshots, referred to as “webflows” or “flows,” to understand the path a user takes to the terms of service and whether the process of engaging with the website would have alerted the user that a contract was being formed by certain actions. Consequently, more courts are placing an evidentiary burden on the drafting party to prove what the webflow was like at the time the user allegedly viewed the notice, and to prove that the user accessed the website during the relevant period.

Keywords: wrap contracts, digital contract, electronic contracts of adhesion, clickwrap, browsewrap, contracts, internet contracts

JEL Classification: k12

Suggested Citation

Kim, Nancy S., Digital Contracts (June 1, 2018 - May 31, 2019) (February 7, 2020). 75 THE BUSINESS LAWYER 1683 (Winter 2019-2020), Available at SSRN: https://ssrn.com/abstract=3534269

Nancy S. Kim (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

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