Comments on: Anarchy Has Ensued In Courts’ Handling of Online Contract Formation (Round Up Post) https://blog.ericgoldman.org/archives/2016/08/anarchy-has-ensued-in-courts-handling-of-online-contract-formation-round-up-post.htm Thu, 20 Apr 2017 07:19:00 +0000 hourly 1 By: Steve Spooner https://blog.ericgoldman.org/archives/2016/08/anarchy-has-ensued-in-courts-handling-of-online-contract-formation-round-up-post.htm#comment-1827 Thu, 20 Apr 2017 07:19:00 +0000 http://blog.ericgoldman.org/?p=16358#comment-1827 Maybe some technological aid in a form of monitoring user activity, and tracking all the EULAs and TOS could help at least being aware of the terms in place.

]]> By: john ottaviani https://blog.ericgoldman.org/archives/2016/08/anarchy-has-ensued-in-courts-handling-of-online-contract-formation-round-up-post.htm#comment-1652 Thu, 08 Sep 2016 15:13:00 +0000 http://blog.ericgoldman.org/?p=16358#comment-1652 Despite Eric’s protestations, these rulings are more or less consistent with historical contract law. (I could go either way on Amazon, but, hey, they left themselves open, and it is only a motion to dismiss). One always has had to provide notice of the terms for a party to give meaningful assent. Here the courts are just getting more into the weeds and telling the websites (and their attorneys) that they have to do a better job in providing notice “that when you click, there are terms that stick.” As for the terminology, the courts are making this more difficult than it should be. It shouldn’t matter whether you call it click wrap or browse wrap or log-in wrap, etc., the test should be the same. The only difference is that without a click, it’s harder to show a knowing manifestation of assent.

]]> By: Michael Fleming https://blog.ericgoldman.org/archives/2016/08/anarchy-has-ensued-in-courts-handling-of-online-contract-formation-round-up-post.htm#comment-1650 Fri, 02 Sep 2016 17:46:00 +0000 http://blog.ericgoldman.org/?p=16358#comment-1650 If the scrutiny and nitpicking that is now being applied to online contracting were applied to pen and ink contracts, I’d have to develop expertise and advice on the opacity of ink, colors that are acceptable, and the type of padding underneath the paper when signed in order to make it enforceable.

What a horrific waste of court resources that could be spent on meaningful issues. These are not Specht-level failures. At some point the burden needs to flip to the other side to prove it wasn’t his or her act of affirmation, as we do with virtually all paper documents with only a minimal degree of initial burden on the proponent. Commerce cannot succeed with such uncertainty. And that’s why we can’t have nice things.

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