Adhesive Terms and Reasonable Notice

64 Pages Posted: 19 Dec 2022

See all articles by Nancy S. Kim

Nancy S. Kim

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: November 15, 2022

Abstract

This Article challenges the conceptualization of adhesive forms as contracts and introduces a taxonomy of adhesive terms. It argues that this classification system should be used to determine which adhesive terms are in fact contractual rather than depending upon the self-serving “contracts” label that businesses use to identify their terms. Even if contract law is not the proper framework, torts, property, and other legal and regulatory regimes may determine the enforceability and effect of adhesive terms.

Thus, this Article is both a deconstruction of standard form contracts and a reconstruction. Courts typically apply the standard of reasonable notice to assess the enforceability of adhesive online terms. This Article proposes that online “reasonable notices” be limited to three lines of text with five words each or five lines of text with three words each. The proposed requirements ensure that online reasonable notices are both conspicuous and comprehensible to the average consumer.

Keywords: clickwrap, shrinkwrap, browsewrap, wrap contracts, adhesive contracts, adhesive terms, standard form contracts, unconscionability, terms of service, terms of use

Suggested Citation

Kim, Nancy S., Adhesive Terms and Reasonable Notice (November 15, 2022). Seton Hall Law Review, Vol. 53, No. 1, 2022, Available at SSRN: https://ssrn.com/abstract=4277882

Nancy S. Kim (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

HOME PAGE: http://https://www.kentlaw.iit.edu/

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