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Tuesday, November 19, 2013

Wrap Contracts Symposium, Part IV: Juliet Moringiello on “Wrap” Terminology: Needlessly Confusing or Useful Analytical Tool?

This is the fourth in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Our fourth guest blogger, Juliet Moringiello, is a Professor at Widener University School of Law, where she regularly teaches Property, Sales, Secured Transactions, and Bankruptcy, and has taught seminars on Cities in Crisis and Electronic Commerce. From 2004 – 2010, she was the co-author, with William L. Reynolds, of the annual survey of electronic contracting law published in The Business Lawyer.

Morigiello“Wrap” Terminology: Needlessly Confusing or Useful Analytical Tool?

Yes, we said it. As Prof. Nancy Kim notes in her terrific new book Wrap Contracts: Foundations and Ramifications, my co-author Bill Reynolds and I have argued that the use of the terms “clickwrap” and “browsewrap” to describe electronically-presented contract terms might be needlessly confusing, and that the terms themselves may even be irrelevant. Yet Nancy, whose work I admire tremendously, has not only embraced this wrap terminology, but has written an entire book about how wrap contracts are materially different from their paper standard-form predecessors. And I enthusiastically agreed to participate in this symposium so that I can sing the praises of this book and encourage ContractsProf readers to go right over to the Oxford University Press web site and buy the book. What gives?

Emerging business practices have long challenged contract doctrine. Contract rules that assumed two parties with equal bargaining power sitting down to hammer out a deal have evolved, both through statutory and case law, to adapt to a world in which parties transact by the use of non-negotiated standard-form terms. Are non-negotiated standard-form terms that are delivered electronically so different from their paper predecessors that they require a new set of rules? Nancy makes a convincing argument that they are, and her (spoiler alert!) ultimate prescriptions include the imposition of a duty to draft reasonably, a rejection of the doctrine of blanket assent in favor of a specific assent requirement, and a redefinition of the doctrine of unconscionability. Although she recognizes that contract doctrine continuously evolves to account for new business practices, Nancy convincingly argues that it is not evolving appropriately in the mass-market electronic contracting realm.

Why should the law treat electronically-presented standard-form contract terms differently from how it treats the same terms presented on paper? The main contribution of this book is its argument that form (and thus “wrap” form) matters tremendously. One of the reasons that Nancy offers to support her position is that the electronic form has altered the substance of standard-form contracts. Freed from the spatial constraints imposed by the paper form, purveyors of electronic terms can offer many more terms in a form contract than could their paper-world predecessors. As a result, consumers are being presented with voluminous and complex terms governing, among other things, data collection and property rights. As a result, according to Nancy, wrap contracts “by their form, permit companies to impose more objectionable terms than paper contracts of adhesion.” Wrap Contracts is filled with specific examples of such terms.

Wrap ContractsAlthough my co-author and I have argued in the past that courts are slowly getting electronic contracts right, most of the electronic contracting cases that result in published opinions involve challenges to choice of forum clauses. We read almost all of those opinions from 2004 through 2010, when we wrote the annual surveys of electronic contracting law for The Business Lawyer.The opinions never get to the substantive guts of the electronic standard terms; they can’t, because often their punch line is “you agreed to arbitration, so arbitration is where you are going to resolve these issues.” When one compares an electronic choice of law clause to the same clause on paper, it looks like an apples-to-apples comparison. The main difference appears to be the way the terms were transmitted, not the substance, so courts tend to analyze only whether the electronic terms are reasonably communicated to the non-drafting party. So long as the non-drafting party can access the terms via an arguably conspicuous link, the courts hold that there is sufficient notice and therefore assent. This judicial conflation of notice and assent is not unique to electronic contracting law, but Nancy argues that its application is inappropriate to wrap contracts because often individuals do not have any idea that they are entering into legally-binding agreements.

Although Nancy cites to studies that support her contention that many computer users do not know that their actions will result in legally-binding agreements, here is one area in which I find the “wrap” umbrella unhelpful. Today’s 25-year-old is probably more accustomed to clicking to agree than to signing to agree. On the other hand, few people other than those reading this post may know that the “Terms of Use” link on the bottom of a web page purports to give notice of contract terms. Therefore, the two “wrap” terms, clickwrap and browsewrap, describe two forms that send very different signals.

That said, one of Nancy’s most convincing contributions in Wrap Contracts is her discussion of how notice in the electronic context is not the same as notice in the paper world. Again, form matters. Whether terms are presented in clickwrap, browsewrap, or multiwrap form, the notice that contract terms are available often appears on a different web page from the terms themselves. As a result, she argues, even the most conspicuous “Terms of Use” hyperlink is not the same as its paper counterpart, because the latter includes a conspicuous notice of contract terms on the same sheet of paper as the terms themselves. And perhaps here is where Nancy, Bill and I don’t really disagree. Bill and I don’t like the terms clickwrap and browsewrap because pure clickwrap, which requires an affirmative act to accept terms, is very different from browsewrap, which does not. We think that courts that focus on that distinction produce questionable results. Bill and I recognize, as does Nancy, that many online contracts today are really a combination of clickwrap and browsewrap, or “multiwrap” (unlike us, she was clever enough to use the term). Nancy, on the other hand, uses the term “wrap” as convenient shorthand for the diverse electronic presentations that allow online vendors of goods, services, and computer programs to present many more, and therefore more onerous, terms, than their tangible world predecessors. Form matters, and the electronic “wrap” form is physically different from the paper form in ways that stretch the boundaries of traditional contract doctrine. Her engaging explanation of these modern contract forms illustrates that perhaps, courts are not getting electronic contracts right and that they need to be nudged to do more. Wrap Contracts can provide that nudge.

[Posted, on Juliet Moringiello's behalf, by JT]

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