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Vol 21 No 11 Nov/Dec 2016

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Wrap Contracts: Foundations and Ramifications (eBook)


ISBN13: 9780199399116
Published: September 2013
Publisher: Oxford University Press USA
Country of Publication: USA
Format: eBook (ePub)
Price: £54.17 + £10.83 VAT
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When you visit a website, check your email, or download music, you enter into a contract that you probably don't know exists.

Wrap contracts - shrinkwrap, clickwrap and browsewrap agreements - are non-traditional contracts that look nothing like legal documents. Contrary to what courts have held, they are not "just like" other standard form contracts, and consumers do not perceive them the same way. Wrap contract terms are more aggressive and permit dubious business practices, such as the collection of personal information and the appropriation of user-created content.

In digital form, wrap contracts are weightless and cheap to reproduce. Given their low cost and flexible form, businesses engage in "contracting mania" where they use wrap contracts excessively and in a wide variety of contexts. Courts impose a duty to read upon consumers but don't impose a duty upon businesses to make contracts easy to read. The result is that consumers are subjected to onerous legalese for nearly every online interaction.

In Wrap Contracts: Foundations and Ramifications, Nancy Kim explains why wrap contracts were created, how they have developed, and what this means for society. She explains how businesses and existing law unfairly burden users and create a coercive contracting environment that forces users to "accept" in order to participate in modern life.

Kim's central thesis is that how a contract is presented affects and reveals the intent of the parties. She proposes doctrinal solutions - such as the duty to draft reasonably, specific assent, and a reconceptualization of unconscionability - which fairly balance the burden of wrap contracts between businesses and consumers.

Subjects:
Other Jurisdictions , eBooks, USA
Contents:
CHAPTER 1: INTRODUCTION

CHAPTER 2: WHY ENFORCE CONTRACTS?
A. INDIVIDUALISTIC/DEONTIC THEORIES
B. CONSEQUENTIALIST THEORIES
C. DYNAMIC OR "MULTI-VALUE" THEORIES OF CONTRACT LAW

CHAPTER 3: CONTRACTS AND CONTRACT LAW IN SOCIETAL CONTEXT
A. CONTRACT LAW AND EVOLVING BUSINESS NEEDS
B. CONTRACTS OF ADHESION
C. FUNCTION, FLUIDITY AND INSTRUCTIVE CONTRACTS

CHAPTER 4: THE RISE OF 'WRAP CONTRACTS: THE EARLY CASES
A. SHRINKWRAPS
B. CLICKWRAPS
C. BROWSEWRAPS

CHAPTER 5: CONTRACT TERMS AS SWORD, SHIELD AND CROOK
A. CONTRACT AS SHIELD
B. CONTRACT AS SWORD
C. CONTRACT AS CROOK

CHAPTER 6: PROBLEMS OF FORM
A. IS A 'WRAP CONTRACT JUST ANOTHER CONTRACT OF ADHESION?
B. SADISTIC CONTRACTS

CHAPTER 7: PROBLEMS OF SUBSTANCE
A. 'WRAP CONTRACTS AND NORM SHIFTING
B. GETTING SOMETHING FOR NOTHING: THE OLD BAIT AND SWITCH
C. THE LIMITS OF UNCONSCIONABILITY AND THE PROBLEM OF OTHER LAWS

CHAPTER 8: THE SENSE AND NONSENSE OF 'WRAP CONTRACT DOCTRINE
A. WHAT IS SUFFICIENT NOTICE?
B. AN OUTLINE OF 'WRAP CONTRACT DOCTRINE
C. A NEW KIND OF JUDICIAL ACTIVISM

CHAPTER 9: FORM, FUNCTION, AND NOTICE
A. WHAT IS A NOTICE?
B. INTENT AND CONSENT IN CONTRACTS, TORTS AND PROPERTY
C. CONTRACT FUNCTIONALISM

CHAPTER 10: CONTRACTS IN WONDERLAND
A. CONTRACT LAW AND THE RIGHT OF PUBLICITY.
B. 'WRAP CONTRACTS AND FEDERAL LAWS
C. TERMS OF DISSERVICE

CHAPTER 11: RESHAPING 'WRAP CONTRACT DOCTRINE
A. IMPOSING A DUTY TO DRAFT REASONABLY
B. TAILORING ASSENT
C. INTERPRETATION, CONSTRUCTION AND CONTRACT FORM AND FUNCTION
D. ENVIRONMENTAL COERCION

CHAPTER 12: CONCLUSION

INDEX