Want An Enforceable Online Contract? Don’t Use A Footer Link Called “Reference”–Zajac v. Walker
This lawsuit involves the purchase of items I don’t understand. Let’s just call them “thingies.” The buyer Zajac needed thingies with an appropriate rating. It bought the thingies from a distributor, Walker, then realized the thingies didn’t have the appropriate rating. Recriminations and a lawsuit ensued.
I screenshotted Turck’s home page on July 26, 2016. Look at the bottom footer block for the almost-invisible “reference” link:
The court is totally unimpressed with the manufacturer’s arguments (yes, the court calls the TOU a browsewrap but I’ll overlook that transgression):
(Please recall that I am the son of a reference librarian, so “reference” has a special and personal meaning to me. But I’ll admit that no one assumes there’s going to be something exciting associated with “reference”).
What should the manufacturer done differently? Just about everything. But mostly, if your argument is that you formed a contract with a buyer because they visited your website during the shopping process before making the purchase somewhere other than the website, my vote is that you save your dollars and don’t even litigate the issue.
Case citation: Zajac, LLC v. Walker Industrial, 2016 WL 3962830 (D. Maine July 21, 2016)