Revisiting the Enforceability of Online Contracts: The Need for Unambiguous Assent to Inconspicuous Terms

 ABSTRACT

In determining the enforceability of online contracts, namely those formed from the use of smartphone applications, courts typically look to whether the contract terms were reasonably conspicuous or communicated to the consumer. With the rise of ‘browse-wrap’ contracts, where terms are not directly communicated to the consumer or where the consumer is not required to click the equivalent of an ‘I agree’ button clearly manifesting assent to the terms, courts have inconsistently applied the reasonable communicativeness standard to the detriment of consumers and application developers alike. This Comment will explore the development of browse-wrap contracting jurisprudence and the need to embrace the Specht v Netscape Communications Corp and GDPR requirements that all contracts entered into online are only enforceable once the consumer clearly and unambiguously manifests assent to the contract’s terms.

Tom Mozingo, Revisiting the Enforceability of Online Contracts: The Need for Unambiguous Assent to Inconspicuous Terms, 43 Seattle University Law Review 1065 (2020).







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