29 August 2005

“Browse-Wrap Agreement” Decision

I am also indebted to Geoffrey Gussis for his introducing me to Contracts Prof Law Blog which contains a summary by Meredith Miller of Hubbert v. Dell Corp., 2005 Ill. App. LEXIS 808 (12 Aug, 2005).

That appears to be a decision of an appellate court in Illinois enforcing an arbitration clause on an e-commerce site. The point at issue appears to have been that the buyer did not appreciate that they were consenting to that clause when they clicked the "I accept" box on the supplier's site. Their lordships do not appear to have had much sympathy with that submission. The author quotes the following passage from their judgment:

"The blue hyperlink entitled "Terms and Conditions of Sale" appeared on numerous Web pages the plaintiffs completed in the ordering process. The blue hyperlinks for the "Terms and Conditions of Sale" also appeared on the defendant's marketing Web pages, copies of which the plaintiffs attached to their complaint. The blue hyperlinks on the defendant's Web pages, constituting the five-step process for ordering the computers, should be treated the same as a multipage written paper contract. The blue hyperlink simply takes a person to another page of the contract, similar to turning the page of a written paper contract. Although there is no conspicuousness requirement, the hyperlink's contrasting blue type makes it conspicuous. Common sense dictates that because the plaintiffs were purchasing computers online, they were not novices when using computers. A person using a computer quickly learns that more information is available by clicking on a blue hyperlink"

Clicking without reading these very long contrats d'adhesion is something that we do all the time. A question that might arise in other jurisdictions such as ours is whether they would survive the Unfair Contract Terms Act 1977 as amended (a copy of which appears on John Antell's website) or The Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083). From my days as legal advisor at VISA and also from teaching US students at McGeorge's summer school I seem to remember that there was some legislation in the USA to similar effect. It might be a good essay for the learned law profs to set their students when they return from their vacation in the new term.


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