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Part III - Contract Design and Good Faith

Published online by Cambridge University Press:  05 February 2013

Larry A. DiMatteo
Affiliation:
University of Florida
Qi Zhou
Affiliation:
University of Sheffield
Severine Saintier
Affiliation:
University of Sheffield
Keith Rowley
Affiliation:
University of Nevada, Las Vegas
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Summary

Mass consumer online agreements lack many of the features of traditional contracts. Their unique characteristics compound the problems that are generally raised by contracts of adhesion. Online agreements are usually presented to the consumer in a way that obscures their legally binding nature. This chapter argues that courts should recognize the differences between online and offline contracts by considering a contract’s form and manner of presentation in adjudicating contract disputes. The design of a contract shapes, expresses and reveals the parties’ intent. “Clickwrap” and “browsewrap” agreements have the power to affect consumer behaviour, not through their terms (which most consumers do not read), but through their presentation and design.

The chapter concludes that courts should recognize contracting realities, such as consumer behaviour and contract design, in applying the standard of reasonableness in contract disputes.

Type
Chapter
Information
Commercial Contract Law
Transatlantic Perspectives
, pp. 179 - 222
Publisher: Cambridge University Press
Print publication year: 2013

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